Beyond Masks: German Works Councils Play Key Role in Employee Safety

The right of German works councils to co-determine matters relating to employee health and safety is not new, but has become far more relevant in light of the COVID-19 pandemic. Given the importance of this issue to employers in the current environment, a closer look at the parameters of this co-determination right is due.

The foundation of the right arises from Section 87(1) of the Works Constitution Act (Betriebsverfassungsgesetz, or BetrVG), pursuant to which works councils have a right of co-determination in matters for the "protection of health on the basis of legislation or safety regulations." The provision makes clear that the right of co-determination exists only over issues that are not already prescribed by legislation or safety regulations. Moreover, while the right of co-determination is triggered if the employer is required to implement health protections within a designated legal framework (i.e., "on the basis of legislation or safety regulations"), the right of co-determination exists only if there is also some leeway in how the employer designs and implements those protections. (Federal Labor Court (Bundesarbeitsgericht, or "BAG" ) decision, December 11, 2012, 1 ABR 81/12).

A prime example of such a framework is Section 3(1) of the Work Safety Act (ArbSchG), which obligates employers to take necessary measures for the occupational safety and health of the workforce "while considering the circumstances influencing safety and health of employees at work." Pursuant to Section 5 of the Work Safety Act, the employer must perform a risk assessment to determine which measures of occupational safety and health are "necessary" under Section 3. Among other risks, the assessment requires the employer to consider physical, chemical, and biological risks to the workforce. In the current climate, the potential transmission of the coronavirus to and from employees (or others) in the workplace appears to present such a biological risk.

Section 3 of the Workplaces Ordinance (ArbStättV) provides further direction on how to perform the risk assessment required by Section 5 of the Work Safety Act. Section 3 requires a three-step procedure. The first step is an assessment of whether employees are, or may be, exposed to workplace safety and health risks of any kind. If so, all possible risks are to be evaluated in step two, taking into account the effects of those risks, including physical and psychological stress. In step three, depending on the result of the risk assessment, the employer must decide upon measures to implement to protect the workforce, which must be determined in accordance with the latest developments in occupational medicine and hygiene. The risk assessment must be done professionally; if the employer lacks expertise, it must seek expert advice. (Section 3(2) ArbStättV).

In a March 28, 2017, decision (1 ABR 25/15), the BAG emphasized that, in order to become applicable, Section 3(1) of the Work Safety Act does not require specific health hazards (keine konkrete Gesundheitsgefahr), but it does require specific risks (konkrete Gefährdungen), which have to be assessed in accordance with Section 5. In the context of an exceptional infection wave, this could mean that a specific biological risk may exist and trigger co-determination on risk assessment unless there are official requirements (e.g., minimum distancing) specific enough to leave no room for co-determination. A risk assessment obligation may potentially have to be followed by appropriate measures. Besides, according to law (Section 5 (3) No. 1 ArbSchG), a general risk may already result from merely establishing a workplace. This becomes apparent, for example, when it involves heavy current, heavy weights, or forklift operation.

Co-determination on safety and health matters under Section 87(1) of the Works Constitution Act is mandatory co-determination, which means that if the employer cannot reach an agreement with the works council, the issue must be taken to arbitration. However, the employer and the works council have to endeavor to agree and cannot simply delegate the determination regarding such matters right away to the arbitration board, because the arbitration board then would lack competence to make such decisions. Safety and health measures implemented by an employer without the agreement of the works council (or, alternatively, the resolution of the arbitration board) are per se invalid. For safety and health measures that require quick action and implementation, the co-determination requirements can be problematic.

In a November 19, 2019, decision (1 ABR 22/18), the BAG clarified the purpose of co-determination in Section 5 of the Work Safety Act: it aims to avoid disputes over the procedures for assessing workplace conditions. In this context, the BAG emphasized that co-determination also covers the questions of whether, and to what extent, the working conditions of several employees are identical and, consequently, whether a risk assessment performed at one workplace suffices for another.

Regardless of a works council's rights of co-determination, it is critical to remember that employers always bear responsibility for risk assessments and risk prevention under the Work Safety Act (Section 13 ArbSchG). Thus, it is always in the employer's interest to handle these undertakings effectively, if only to avoid liability.