Occupational health and safety: The most important regulationsThere is an almost unmanageable abundance of regulations on occupational health and safety: EU directives, laws, regulations, accident prevention regulations, technical rules, DGUV rules, DGVU information and DGUV principles. It is difficult to keep an overview and to know what applies in which cases and with what binding force.
Here is the overview of which regulations apply to which cases and which obligations, but also discretionary powers exist.
The Basic Law as a basis
Like co-determination as a whole, health protection and co-determination in this regard are based on Art. 2 GG. Everyone has the right to life. Physical integrity.
Art. 2 Abs. 2 sentence 1 GG
Because the Basic Law first of all only obliges the state to protect the basic rights, the state has the claims of the citizens from Art 2. Para. 2 GG at work organized in such a way that employers are responsible for the life and health of workers.
Lt. § Section 618 of the German Civil Code (BGB) requires an employer to furnish and maintain "rooms, devices or equipment" in such a way that employees are protected from hazards to life and health to the extent possible. The work processes themselves must also be designed in this way. Every employee has this individual claim against the employer.
However, the individual entitlement does not establish any collective entitlement. Therefore, the works council has no right of co-determination here either. At most, he has a duty of supervision (§ 80 para. 1 no. 1 BetrVG).
However, it is questionable whether an employee even knows that he or she has this right, and whether – if he or she does know – he or she will dare to enforce his or her right against his or her employer in the labor courts if necessary. So far, I have not noticed that cases in which employees assert their claims for occupational health and safety are piling up at the labor courts.
Occupational Health and Safety Act (ArbSchG)
Since the individual-employee right of employees is not yet sufficient to effectively encourage employers to fulfill their responsibility, the legislature has additionally enacted a number of public-law regulations on occupational health and safety. The most important of these is the ArbSchG. It is based on the EU Directive 89/391/EEC ("Framework Directive"). Transposes the provisions of this directive into German law.
The aim of the Occupational Safety and Health Act is to ensure that the safety and protection of the health and life of workers in the workplace are guaranteed. To this end, the ArbSchG obliges the employer to take the necessary measures.
A significant difference between the individual labor law claim from § 618 BGB and the public law provisions from the ArbSchG is:
– An employee must also have an individual labor law claim under Section 618 of the German Civil Code against the employer for the implementation of health protection measures, i.e. z. B. through an action before the labor court, enforce. Neither the works council nor the supervisory authorities nor the employers' liability insurance association are involved. – The obligations arising from the public-law regulations on occupational health and safety (ArbSchG, ArbStattV, BetrSichV, etc.) must be observed.) must be complied with by the employer in any case, and the supervisory authorities, in certain cases also the employers' liability insurance associations, can compel the employer to do so by means of coercive measures. The works council also plays a role here within the framework of co-determination, which I will discuss later on.
Further differences between § 618 BGB and the ArbSchG are the concretizations that the ArbSchG contains on how to proceed with occupational health and safety.
Measures of occupational health and safety are measures (§ 2 para. 1 ArbSchG):
– for the prevention of accidents, – for the reduction of work-related health hazards, and – for the humane design of work.
In particular, the employer must ensure suitable organization (i.e. z. B. to assign personnel for occupational health and safety) and to provide the necessary resources. The employer must bear the costs.
The main duty of the employer is defined in § 3 ArbSchG:
The employer is obliged to take the necessary occupational health and safety measures […] […].
3 para. 1 sentence 1 ArbSchG
So (very similar to § 618 BGB) the employer is taken into the obligation to take the necessary measures of occupational health and safety. He can therefore z. B. Do not retreat to taking measures only if someone external can be found to finance them.
In occupational health and safety, (u. a.) the following principles must be observed (§ 4 ArbSchG):
– Hazards must be avoided completely, if possible, and the residual risk must be reduced as far as possible – as already mentioned: Occupational safety and health protection consist primarily of prevention. – Dangers are to be combated at the source. – Measures must take into account the state of the art in technology, occupational medicine and hygiene, as well as other established occupational science findings. – Individual protective measures are subordinate to other measures.
This describes an essential principle of prevention, also known as the " STOP " principle:
S ubstitution: If a situation, z. B. a hazardous substance, a machine or an activity poses a health hazard or even a significant hazard, the first thing to do is to try to replace the source of the hazard with another means – i.e. substitution.
T echnical measures: If it is not possible to substitute (and not if it is too time-consuming or too expensive) one must try to ensure by suitable technical measures that the source of danger is eliminated as far as possible or at least contained.
O rganizational measures: If this is not sufficient to ensure the highest possible level of health protection, organizational measures are the third choice – an attempt must be made to reduce the extent of the stress or the risk of injury through changes in the organization of work. Reduce impairment as far as possible.
P eral measures: Only if no other measure is possible or successful, do personal measures, e.g. B. be considered in the form of personal protective equipment. However, they are the last choice, which can only be considered if all other measures are ruled out or are still insufficient.
Examples of the "STOP" principle:
– A hazardous substance is toxic, carcinogenic or otherwise dangerous. At the beginning there is substitution. So the first thing to do is to look for another substance which is also suitable, but which does not pose a hazard. If such a less hazardous substance does not exist, or if its use is absolutely unjustifiable, technical solutions must be sought to eliminate the hazard or at least reduce it as far as possible – e.g. B. by means of closed circuits from which the hazardous substance cannot escape, extraction systems, etc. If this is also not possible or not possible to a sufficient extent, organizational measures must be taken. Z. B. the quantity of the hazardous substance present at the workplace in each case must be reduced to the lowest possible level. In last place are personal protective measures, z. B. frequent detachment, respirators, protective goggles and other protective clothing. – A machine is noisy and vibrates, and this noise and vibration reach a level that endangers the health of workers. The first category of measures must be aimed at converting or replacing the machine in order to eliminate the noise and vibrations. If this is not possible, it is necessary to look for technical ways to keep the noise and vibrations caused by the machine away from the workers (z. B. place the machine on floating screed, encapsulate it, etc.). If this is not possible or if even this is not sufficient, organizational measures can be considered, e.g. B. relieving workers more frequently, interrupting work more frequently, putting the machine out of operation as often as possible, etc. And only as a last resort, personal protective equipment can be considered again, z. B. Hearing protection or vibration-absorbing mats or shoe soles.
The legislator applies the "STOP principle" quite consistently in the various occupational health and safety regulations. The last example mentioned about the noisy machine comes from § 7 of the LarmVibrationsArbSchV:
(1) The employer has to determine, in accordance with § 3 para. 1 Sentence 6 to be implemented in accordance with the state of the art in order to eliminate the risk to employees or to reduce it as far as possible. The following order of priority must be taken into account:
1. Noise emission must be prevented at the point of origin or reduced as far as possible. Technical measures have priority over organizational measures.
2. The measures according to number 1 have priority over the use of hearing protection according to § 8.
§ 7 NoiseVibrationArbSchV
What are "established occupational science findings"?
In § 4 ArbSchG, but z. B. Sections 90 and 91 of the German Works Council Constitution Act (BetrVG) also refer to "established scientific findings". Of course, the question arises as to what constitutes established ergonomic knowledge. For this purpose, it must be clarified what occupational science is, when findings of occupational science can be regarded as "secured" and to what extent they must be taken into account in regulations and measures.
Occupational science is the study of human work. It deals with the adaptation of work to people (not the adaptation of people to work!). The goals of occupational science are to adapt people to work:
– harmless, – executable, – tolerable and – free of impairment
creating working conditions – this is what is also summarized under the term "ergonomics.
By "harmlessness" is meant: direct damage to health is excluded. Equipment and facilities are to be provided and work is to be organized in such a way that immediate damage to health (accidents, poisoning, etc) is avoided.) cannot occur.
By "feasibility" is meant: the standard for the work is the human capacity. The requirements must therefore be designed in such a way that they do not overstrain the respective worker or. Match with available resources (including personal resources).
Tolerability" means that the work does not lead to damage, even in the long term:
– Even if the chair does not tip over (i.e. it is "harmless"), sitting on it must also be tolerable in the long term and must not cause any harm. – Even if a substance does not lead directly to poisoning (i.e. is directly "harmless"), handling it must be tolerable, because it can, e.g., lead to a reduction in the risk of poisoning. B. is not unbearably smelly or even carcinogenic, i.e. causes long-term damage.
By "freedom from impairment" is meant: It is avoided that z. B. due to underchallenge, monotony, loneliness, etc. Impairment of the (also psychological. Social) well-being occurs. Work is designed and organized in such a way that workers feel as comfortable as possible doing it.
If we consider the elements of requirements, resources and external influences as influencing variables, the goal of occupational science is to design these three elements in such a way that negative stresses and impairments are avoided. The task of occupational science is to find out how these influences affect people, how they interact, and which measures are best suited to eliminate hazards.
Occupational science – as is the nature of science – is constantly gaining new knowledge, not least because there are also constantly new techniques, new working methods and new requirements.
"Secured occupational science findings"
The knowledge of occupational science is deemed to be reliable if it is accepted by the vast majority of recognized scientists and experts. In any case, occupational science findings are considered to be secure when they are
– be officially published (i. d. R. by the Federal Institute for Occupational Safety and Health – "BAUA"), but also by local authorities, – are announced in the form of technical rules – z. B. be defined as "Technical Rules for Workplaces" (ASR), "Technical Rules for Industrial Safety" (TRBS) or "Technical Rules for Hazardous Substances" (TRGS) or – be defined by professional associations.
Standards can also contain validated occupational science findings, z. B. the ISO 9241 family of standards.
Consideration of established occupational science findings
§ 4 No. 3 ArbSchG requires that "the measures […] must take into account the state of the art in technology, occupational medicine and hygiene, as well as other established scientific findings". "To be taken into account" is not the same as "to be implemented".
The technical rules for workplaces ("ASR") state z. B. usually the sentence
If the technical rules are complied with, the employer can ame that the corresponding requirements of the regulations are met.
This makes it clear: If you can implement validated occupational science findings, and if you do so, you are on the safe side – then you can ame that you have done everything right. But not all occupational science findings contain "if-then rules" that could be implemented 1:1. And sometimes it is not enough, because special conditions exist.
In the case of risk assessments and the measures derived from them, one must at least be guided by such findings – insofar as they exist. The way in which they can and/or must be implemented is not least the result of risk assessments.
§ 3 Abs. 1 ArbSchG obligates employers to take the "necessary measures" for health protection. The only question is: Which measures are required in each case?? This is not stated there, and the legislator cannot determine this either. It depends on the requirements, resources and external influences that affect the individual worker in his or her specific job. Thus, depending on the activity, conditions, etc., special obligations may arise. – quite different measures may be required.
Therefore, for each type of workplace and each type of activity (and, strictly speaking, even for each employee), the working conditions must be assessed, this is required by § 5 ArbSchG. The aim of the risk assessments is to determine which factors affect the employees in which way, whether hazards can arise from this and whether and, if so, what the risks are. which measures are required to use evt. to eliminate existing hazards or at least to reduce them to a tolerable level.
I will deal with the topic of risk assessment in detail in another article.
The risk assessments must be documented (§ 6 ArbSchG). Because the works council has the task of monitoring compliance with the protective regulations, it should obtain documentation of the risk assessments carried out in the past.
Further provisions of the ArbSchG
The ArbSchG contains a number of further provisions, which I cannot present in detail here – that would go beyond the scope of this article. Therefore here only a rough overview:
The employer has to ensure that the employees are able to comply with the regulations and measures to be observed (§ 7 ArbSchG). For this purpose, he must instruct the employees, if necessary.
– instruct, – train, – have trained, etc.
The employer must ensure that access to particularly hazardous areas is only granted to employees who have been specially prepared for this (§ 9 Para. 1 ArbSchG).
The employer must take measures for
– first aid, – firefighting and – evacuation (§ 10 para
evacuation (§ 10 para. 1 ArbSchG). He must appoint persons to take over tasks in first aid, fire fighting and evacuation (§ 10 para. 2 ArbSchG).
The employer has to provide adequate or. to enable occupational medical examinations required for their safety (§ 11 ArbSchG). Which examinations are necessary, is determined in the ArbMedVV. The employer bears the costs for these examinations. The employer must inform the employees about safety. Health protection at work to instruct (§ 12 ArbSchG). The instruction must take place at
– the hiring, – a transfer, – the introduction of new work equipment or techniques
be carried out in each case before the start of the activity. They have to. Health at work must be taken care of (§ 15 para. 1 ArbSchG). – You have machines, equipment, tools etc. to be used as intended (§ 15 para. 2 ArbSchG). – They must identify hazards, defects, etc. notification (§ 16 ArbSchG). Creation of suitable working conditions. Other measures are above all elements of the relationship prevention. The Occupational Health and Safety Act determines the general principles. Rules of health protection at work. Therefore, it is supplemented by a number of ordinances that name individual topics and specify individual ies in detail.
The Workplace Ordinance prescribes how workplaces must be designed and set up so that occupational safety and accident prevention are guaranteed. In an annex, special rules are made for a large number of individual cases.
Special duties arise z. . from:
– Annex Nr. 1.3 ArbStattV (marking obligations) – appendix no. 1.5 ArbStattV (floors) – appendix no. 2.3 ArbStattV (escape routes, emergency exits) – Annex no. 3 ArbStattV (working conditions) etc.
In particular, no. 6 of the annex is important: since December 2016, this has contained provisions on VDU work that have been taken over and modernized from the previous VDU work ordinance. Particularly noteworthy is a sentence from Ziff. 6.5 in the appendix, which obliges employers to "provide suitable software systems in particular". Word is only gradually getting around, and it promises to be quite exciting to see how case law, but also what regulatory solutions, will develop over the next few years.
There are no ASR (Technical Rules for Workplaces) for chapter 6 yet. in the annex to the ArbStattV, z. B. for the answer to the question of what makes "suitable software systems" suitable. Here, recognized standards can be taken into consideration as a standard for assessing validated occupational science findings, above all ISO 9241-110 and related standards from the ISO 9241 family.
In addition to the workplace ordinance, there are a large number of other ordinances. They each regulate individual areas of occupational health and safety.
The German Ordinance on Industrial Safety and Health (BetrSichV), which was revised in 2015, is of particular importance here. The subject of this regulation is the safety during the operation of work equipment and facilities. It is supplemented by technical rules for operational safety ("TRBS").
In addition, however, the Hazardous Substances Ordinance, the Load Handling Ordinance, the Biological Substances Ordinance, the Ordinance on the Protection of Employees against Risks from Noise and Vibration, the Ordinance on Safety and Health Protection in the Use of Personal Protective Equipment at Work and various others are also relevant. There are also supplements to most of these regulations in the form of technical rules or the like, in which verified occupational science findings are published.
Occupational Safety Act (ASiG)
The purpose of the Occupational Safety Act is to ensure that occupational safety and accident prevention regulations are effectively implemented by requiring employers to appoint company physicians and occupational safety specialists.
The company physicians and specialists for occupational safety support the employer in his duties with regard to occupational safety and accident prevention (§ 1 ASiG). It is clear from this that the responsibility nevertheless lies with the employer.
The law does not specify the number of employees for whom a company physician or occupational safety specialist must be appointed. The employer must decide on the appointment according to the size of the company. Decide correctly according to the nature of the potential hazards.
DGUV 2 defines a key that determines in principle (but not quite conclusively) what number of specialists of what type must be appointed depending on the type and size of the company. There is a certain amount of discretion here.
Company physicians and occupational safety specialists can only be appointed or dismissed with the consent of the works council (§ 9 para. 3 ASiG). The ASiG explicitly refers to § 87 and § 76 of the Works Council Constitution Act (BetrVG) – i.e., "mandatory" co-determination applies here.
The works council has a say in any case
– on whether an employee of the establishment or an outside entity is appointed and – which employee is appointed.
However, the works council's co-determination is limited in that it does not have a say in the selection of a specific external service provider. This follows from sentence 2 of § 9 para. 3 ASiG.
Company physicians and occupational safety specialists are not subject to directives in the performance of their duties (§ 8 ASiG), but they must cooperate with the works council (§ 9 Para. 1 ASiG).
The works council not only has a say in the appointment of skilled workers and company physicians. The definition and amendment of their tasks and responsibilities are also subject to mandatory co-determination by the works council (Section 9 para. 3 sentence 2 ASiG).
In companies with more than 20 full-time employees on a regular basis, an occupational safety committee must be formed (§ 11 ASiG). The works council is represented on this committee by two members. The committee meets as required, but at least once a quarter.
The committee has no special powers. It advises on occupational health and safety ies. It cannot make any binding decisions; the responsibility lies solely with the employer.
Learn more about the topics covered in these seminars:
Social Code VII
The 7. Social Security Code regulates statutory accident insurance for employees. Section 15 of SGB VII states that the statutory accident insurance institutions (i.e. usually the employers' liability insurance associations) may ie accident prevention regulations (UVVs). Companies are obliged to comply with accident prevention regulations.
The German Social Accident Insurance (DGUV), as the umbrella organization, coordinates the development of the UVVs and publishes its own regulations, which are used as a basis by the individual specialist BGs, adapted and declared binding.
In companies with regularly more than 20 employees, safety officers must be appointed (§ 22 SGB VII). The works council must be involved in their appointment (but does not have a say – this is less than in the ASiG).
The tasks of safety officers are similar to those of occupational health and safety specialists, but focused on ies of accident prevention and the prevention of occupational illnesses. They are to ensure compliance with the protective regulations in "operational business".
(Almost) all statutory regulations and ordinances have in common that they contain only few very concrete and binding provisions. You often find terms like "necessary", "sufficient", "appropriate", "conducive" etc. there. As a result, these regulations are not conclusive, but rather contain a considerable amount of discretionary leeway.
Structure of the occupational health and safety regulations
Why this makes sense, and what role the works council plays in this, we will look at a little later on.
Supervision of compliance with occupational health and safety is carried out by the supervisory authorities. The supervisory authorities are determined by the federal states. Different responsibilities apply depending on the country. The decisive factor in each case is the location of the company (not necessarily in the sense of works constitution law).