Testing, not resting – Obligation to offer tests under the newly amended SARS-CoV-2 Occupational Health and Safety Ordinance

The ongoing quest to combat and prevent the further spread of the SARS-CoV-2 virus is currently impaired by the emergence and propagation of more dangerous virus variants. The Federal Ministry of Labor and Social Affairs (Ministry) has identified frequent testing in occupational environments as a means to prevent the spread of the virus earlier and more effectively.
Thus, the Ministry has issued a second ordinance amending the SARS-CoV-2 Occupational Health and Safety Ordinance (“SARS-CoV-2 Arbeitsschutzverordnung“, Ordinance) which introduces an obligation of employers to offer tests for the detection of the SARS-CoV-2 virus to employees. The amended version comes into force on 19 April 2021. All previously existing regulations of the Ordinance are extended through 30 June 2021.

An employer’s obligation to offer tests

Under the regulations of the Ordinance, an employer must offer employees a test for direct pathogen detection of the SARS-CoV-2 virus at least once per calendar week, unless the employees work exclusively from home. For specific employee groups, two tests per calendar week must be offered. This includes (i) employees accommodated in group housing by the employer or upon the employer’s request, (ii) employees working in enclosed spaces under climatic conditions conducive to the transmission of the virus, (iii) employees working in establishments offering personal services whereby direct physical contact cannot be avoided, (iv) employees engaged in activities involving contact with other individuals if such individuals are not required to wear mouth/nose protection and (v) employees who are in frequently changing contact with other individuals due to operational reasons.

The Ministry mentions both PCR tests as well as rapid antigen tests as viable options for testing. According to the rationale of the Ordinance, both professional testing as well as self-administered testing will suffice. The costs of the test are borne by the employer. In addition to that, the employer is obligated to retain documentation on the procurement of tests or on agreements with third parties regarding testing for a period of four weeks.

Other implications

It should be noted that the neither the employer nor the employees are released from other applicable obligations regarding occupational safety, even if regular testing takes place. Since testing must be viewed as an additional measure only, other protective standards such as the minimum safety distance will still need to be complied with. Following the general recommendation by the authorities, employers should ask their employees to work from home where possible.
Furthermore, it should be noted that deviating or farther-reaching regulations issued in each federal state remain unaffected by the Ordinance. All employers should ensure that they are always up to date on which regulations currently apply at each of their establishments.