Safety, health and hygiene at work

• What provisions must be complied with in terms of safety, health and hygiene at work (occupational safety and health provisions)?
• What legislation regulates safety, health and hygiene at work?
  • Safety and Health at Work Act
  • Individual statutory instruments based on the Safety and Health at Work Act
    • Handling of Loads Ordinance (Lastenhandhabungsverordnung - LasthandhabV)
    • Ordinance on Occupational Healthcare (Verordnung zur arbeitsmedizinischen Vorsorge - ArbMedVV)
      • Penalties for non-compliance with the obligation to provide preventive occupational healthcare
    • Workplace Ordinance (Verordnung über Arbeitsstätten - ArbStättV)
      • Penalties for non-compliance with the Workplace Ordinance
    • Industrial Safety Ordinance (Betriebssicherheitsverordnung - BetrSichV)
      • Penalties for non-compliance with the Industrial Safety Ordinance
    • Construction Site Ordinance (Baustellenverordnung - BaustellV)
      • Penalties for non-compliance with the Construction Site Ordinance
    • Personal Protective Equipment Ordinance (PSA-Benutzungsverordnung - PSA-BV)
    • Hazardous Substances Ordinance (Gefahrstoffverordnung - GefSoffV)
      • Penalties for non-compliance with the Hazardous Substances Ordinance
    • Biological Agents Ordinance (Biostoffverordnung - BioStoffV)
      • Penalties for non-compliance with the Biological Agents Ordinance
    • Compressed Air Ordinance (Druckluftverordnung - DruckLV)
      • Penalties for non-compliance with the Compressed Air Ordinance

What provisions must be complied with in terms of safety, health and hygiene at work (occupational safety and health provisions)?

EU Directive 96/71/EC (the Posted Workers Directive) requires each Member State to ensure that its own national provisions on safety, health and hygiene at work also apply to the posting of workers and assignment of temporary agency workers to that Member State from other EU Member States and non-EU countries.

What legislation regulates safety, health and hygiene at work?

Safety and Health at Work Act

The main piece of legislation in Germany’s occupational safety and health system is the Safety and Health at Work Act (Arbeitsschutzgesetz-ArbSchG).

The Safety and Health at Work Act is intended to safeguard and enhance the safety and health protection of employees at work by means of occupational safety and health measures.

The Act covers all sectors and requires employers to perform a risk assessment, i.e. employers must assess the working conditions in their organisation from the perspective of occupational safety and health. Employers must identify risks posed by the work and the working environment, analyse them and decide what occupational safety and health measures must be taken. This concerns exposure to physical and chemical agents as well as physical and psychological stress which can have a negative impact.

As there can be special risks if a workplace includes the staff of more than one employer, Section 8 of the Safety and Health at Work Act requires those employers to cooperate when it comes to implementing occupational safety and health provisions. Where necessary for the safety and health of workers at work, the employers must inform each other and their workers of the risks to workers’ safety and health associated with the work, and must coordinate measures to prevent those risks.

Under Section 25 of the Safety and Health at Work Act, breaches of the Act’s provisions constitute regulatory offences and can result in administrative fines of up to 25,000 euros. Under Section 26, breaches can also be prosecuted as criminal offences in specific aggravating circumstances, for example in concrete cases of harm to workers’ health, and result in criminal fines or imprisonment.

Safety and Health at Work Act (ArbSchG) (in German)

Individual statutory instruments based on the Safety and Health at Work Act

Statutory instruments have been issued for specific fields on the basis of the Safety and Health at Work Act, and employers are required to comply with them.

Handling of Loads Ordinance (Lastenhandhabungsverordnung - LasthandhabV)

This ordinance requires employers to avoid the need for the manual handling of loads where there is a risk to the health of workers. As that is not always possible, there is a “minimisation requirement”, which means that the physical workload should be kept to a minimum and any risk to workers’ health should be avoided as much as possible.

The annex to the ordinance contains various measures for assessing the severity of the risk and identifying suitable protective measures. Many criteria must be considered, involving the load itself, the task to be performed by workers and the nature of the workplace. For practical use in the workplace, "key indicator methods" (Leitmerkmalmethode) have been developed as a simplified procedure for assessing working conditions.

Specific load weights alone are not a suitable basis for a full risk assessment and are therefore not specified in the ordinance. This is because, on the one hand, lower weights and actions requiring a lower level of force may already have to be classified as a heavy load if they are handled or performed frequently, with awkward body posture and unfavourable working conditions. On the other hand, heavier weights or actions requiring a greater level of force may be acceptable if they are handled or performed rarely, with good posture and in good ergonomic conditions.

When delegating tasks involving the manual handling of loads, employers must take the physical capability of the workers to perform those tasks into account. In this context, employers may be advised, for example, by their workplace physician, who must be familiar with the conditions in the organisation. There is no obligation for employees to demonstrate their physical capability by means of a medical examination.

Employers must make workers aware of the potential risks to their safety and health when handling loads and inform them about how to handle them properly. This includes providing information, explanations and instructions on how to perform work in a way which protects the worker’s back and on what risks exist if loads are not handled properly.

Handling of Loads Ordinance (LasthandhabV) (in German)

Ordinance on Occupational Healthcare (Verordnung zur arbeitsmedizinischen Vorsorge - ArbMedVV)

The aim of the Ordinance on Occupational Healthcare is the early diagnosis and prevention of work-related illnesses, including occupational diseases, by adopting preventive occupational healthcare measures. Under Section 3 of the ordinance, employers are required to ensure appropriate preventive occupational healthcare on the basis of a risk assessment. Section 5a states that workers have the right to obtain preventive medical advice on request and undergo preventive medical check-ups (known as elective healthcare). Section 5 of the ordinance requires employers to offer workers optional healthcare in relation to certain workplace risks before an activity is taken up and thereafter at regular intervals. If the risks are particularly high, mandatory healthcare is required under Section 4 of the ordinance.

Ordinance on Occupational Healthcare (ArbMedVV) (in German)

For practical use in the workplace, the provisions of the Ordinance on Occupational Healthcare have been fleshed out by occupational healthcare rules and recommendations (arbeitsmedizinische Regeln (AMR) und Empfehlungen (AME)), which are published on the website of the Federal Institute for Occupational Safety and Health (www.baua.de).

Federal Institute for Occupational Safety and Health (BAuA)

Penalties for non-compliance with the obligation to provide preventive occupational healthcare

Employers who intentionally or negligently fail to arrange for mandatory healthcare or optional healthcare or to do so in good time, for example, can be deemed to have committed a regulatory offence and face a fine of up to 25,000 euros. The intentional endangerment of the life or health of a worker is a criminal offence under Section 26 no. 2 of the Safety and Health at Work Act and can, in serious cases, lead to imprisonment.

Workplace Ordinance (Verordnung über Arbeitsstätten - ArbStättV)

The Workplace Ordinance contains provisions on the setting up and operation of workplaces. Workplaces, as defined by the ordinance, are places in buildings or outdoors on the site of an organisation, or places on a construction site; they must be intended to house workstations or be places to which workers have access in the framework of their work. Workplaces include, for example, traffic and escape routes, storage and secondary rooms, but also sanitary facilities, break and standby rooms, and first aid rooms, as well as accommodation. The ordinance does not apply to workplaces which are governed by the Federal Mining Act (Bundesberggesetz) or to certain sectors, such as trade carried out with no fixed place of business and market trading, means of transport used in public transport, and areas belonging to agricultural or forestry organisations outside of built-up areas. The ordinance also contains general requirements for work with display screen equipment.

The ordinance aims to prevent accidents by setting out appropriate measures and safety objectives for the setting up and operation of workplaces.

Workplace Ordinance (ArbStättV) (in German)

For practical use in the workplace, the provisions of the Workplace Ordinance are fleshed out by rules for workplaces (Arbeitsstättenregeln - ASR), which are published on the website of the Federal Institute for Occupational Safety and Health.

Federal Institute for Occupational Safety and Health (BAuA)

Penalties for non-compliance with the Workplace Ordinance

The following acts can be punished as regulatory offences under Section 25 (1) number 1 of the Safety and Health at Work Act in the event that breaches are committed intentionally or negligently:

• Breaches of the obligation to carry out a risk assessment and document it
• Breaches of the minimum requirements regarding the setting up and operation of a workplace
• Breaches of the obligation to provide toilets and ensure they comply with the minimum requirements
• Breaches of the obligation to provide break rooms and ensure they comply with the minimum requirements
• Breaches of the obligation to ensure that endangered workers stop work without delay
• Breaches of the obligation to ensure that traffic routes, escape routes and emergency exits are kept clear
• Breaches of the obligation to provide first aid equipment or installations
• Breaches of the obligation to ensure workers receive training before taking up their duties.

In the event that the life or health of workers is endangered intentionally, the above acts are prosecuted as criminal offences.

Industrial Safety Ordinance (Betriebssicherheitsverordnung - BetrSichV)

The Industrial Safety Ordinance fleshes out the Safety and Health at Work Act with regard to the safety and health of workers when using work equipment, including installations. In particular, it includes provisions on risk assessment, protection measures, the maintenance and inspection of work equipment and installations, the training of workers and cooperation between different employers. In the case of certain installations (which are subject to monitoring), the ordinance also serves to protect people other than workers, and it must therefore also be complied with by commercial or economic operators which have no employees.

Industrial Safety Ordinance (BetrSichV) (in German)

For practical use in the workplace, the provisions of the Industrial Safety Ordinance are fleshed out by technical rules for organisations (technische Regeln für Betriebe or TRBS), which are published on the website of the Federal Institute for Occupational Safety and Health.

Federal Institute for Occupational Safety and Health (BAuA)

Penalties for non-compliance with the Industrial Safety Ordinance

Regarding the penalties for non-compliance with the provisions of the ordinance, Sections 22 and 23 of the Industrial Safety Ordinance apply in conjunction with Sections 25 and 26 of the Safety and Health at Work Act and Sections 39 and 40 of the Product Safety Act (Produktsicherheitsgesetz - ProdSG).

Construction Site Ordinance (Baustellenverordnung - BaustellV)

The Construction Site Ordinance governs construction sites and applies to construction projects as defined in Section 1 (3) of the ordinance, i.e. projects involving the construction, alteration or dismantling of structures. The client is primarily required, under Section 4 of the ordinance, to take the measures set out in Sections 2 and 3 (1), first sentence, of the ordinance; the client may appoint a third party to take these measures on their own responsibility (Section 4 of the ordinance).

These measures include, in particular:

• Taking account of the general principles set out in Section 4 of the Safety and Health at Work Act when planning the execution of the project and when estimating the period required for executing the work (Section 2 (1) of the ordinance);
• Communicating a prior notice (Annex I of the ordinance) to the competent authority no later than two weeks before the setting up of certain construction sites in accordance with Section 2 (2) of the ordinance; this requirement applies to all constructions sites on which work is scheduled to last longer than 30 working days and on which more than 20 workers are occupied simultaneously (no. 1), or on which the volume of work is scheduled to exceed 500 person-days (no. 2);
• Updating the prior notice in the event of significant changes, and displaying it on the construction site;
• Arranging for a safety and health plan to be drawn up for certain construction sites in accordance with Section 2 (3) of the ordinance; this applies to construction sites where workers of more than one employer are present and for which a prior notice must be communicated, and to building sites where workers of more than one employer are present and where particularly dangerous work (Annex II of the ordinance) is carried out; the plan must set out the occupational safety and health rules to be applied and specific measures in the case of particularly dangerous work (Annex II), and take into account, where necessary, the industrial activities taking place on the site;
• Appointing one or more suitable coordinators if workers of more than one employer are present on the construction site; however, the appointment of a coordinator does not relieve the client of their responsibility (Section 3 (1a) of the ordinance), and so the client (or third party appointed by the client) must supervise and ensure the fulfilment of the delegated tasks. The client (or third party appointed by the client) can also serve as the coordinator if they meet the requirement of suitability.

The coordinator’s duties are set out in Section 3 of the ordinance. Section 3 (2) states that, during the project preparation stage, these include, in particular, drawing up the safety and health plan, coordinating the taking into account of Section 4 of the Safety and Health at Work Act, and preparing a file containing necessary relevant safety and health information to be taken into account during any subsequent works. Section 3 (3) states that, during the project execution stage, the coordinator’s duties include, in particular, coordinating cooperation between employers and ensuring that working procedures are being implemented correctly. In addition, the coordinator must ensure that employers and contractors without employees fulfil their obligations under the ordinance. The coordinator’s tasks also involve, in particular, the application of Section 4 of the Safety and Health at Work Act and adjustments to the safety and health plan.

Employers are required to take the necessary occupational safety and health measures when the work is being carried out. This involves, in particular, the obligations set out in Section 5 (1) of the Construction Site Ordinance in relation to work equipment, materials and waste, including dangerous materials, the period allocated for work or work stages, cooperation between employers and contractors without employees, and interaction between the work on the construction site and other industrial activities on the site. In addition, employers must take into account directions from the coordinator and the safety and health plan. Employers must also inform workers, in a form and language which is understandable for them, of the protection measures which apply to them. The Construction Site Ordinance does not affect employers’ additional general obligations in relation to occupational safety and health.

Contractors without employees who are engaged in work activity on the construction site and employers who are personally engaged in work activity on the site are also required to comply with the occupational safety and health provisions which apply to the work and to take account of the coordinator’s directions and of the safety and health plan.

Construction Site Ordinance (BaustellV) (in German)

Penalties for non-compliance with the Construction Site Ordinance

Under Section 7 (1) of the Construction Site Ordinance, a regulatory offence, within the meaning of Section 25 (1) no. 1 of the Safety and Health at Work Act, is committed by anyone who intentionally or negligently

• does not, does not correctly, does not fully or does not in due time communicate a prior notice to the competent authority (Section 2 (2), first sentence, and Section 4 of the Construction Site Ordinance – see above); or
• fails to ensure that a safety and health plan is drawn up before the construction site is set up (Section 2 (3), first sentence, and Section 4 of the Construction Site Ordinance).

Anyone who endangers the life or health of a worker through an intentional act set out in Section 7 (1) of the Construction Site Ordinance is deemed to have committed a criminal offence under Section 26 no. 2 of the Safety and Health at Work Act.

Personal Protective Equipment Ordinance (PSA-Benutzungsverordnung - PSA-BV)

Personal protective equipment (PPE) means all equipment designed to be used or worn by workers to protect them against a hazard to their safety and health (including additions and accessories designed to meet this objective, but excluding certain special types of equipment under Section 1 (3) of the Personal Protective Equipment Ordinance).

The Personal Protective Equipment Ordinance fleshes out the requirements of the Safety and Health at Work Act in relation to the use of PPE at work. In particular, employers must identify, as part of the risk assessment, what PPE must be provided for which workers, and may not require the workers to bear the cost of PPE (Sections 3 and 5 of the Safety and Health at Work Act).

In addition, the ordinance establishes the following requirements regarding the provision and use of PPE: under Section 2 of the ordinance, employers may only provide PPE which complies with the relevant provisions on the procurement and placing on the market of PPE and which reflects the worker’s health requirements. Furthermore, PPE must be appropriate for providing protection against the risks involved and correspond to the conditions in the workplace. PPE should be provided to workers for their personal use; otherwise, employers must take action to avoid health risks and hygiene problems. PPE must fit the individual worker. If more than one item of personal protective equipment is worn simultaneously, they must not interfere with each other’s effectiveness. Employers must ensure, by means of proper storage as well as maintenance, repair and replacements, that the PPE remains in good working order and satisfactory hygienic condition for the entire duration of its use.

Employers are required to instruct or train workers on how to use the PPE safely. For each item of PPE provided, employers must make the necessary information on its use available in a form and language which is understandable for the workers.

Personal Protective Equipment Ordinance (PSA-BV) (in German)

Hazardous Substances Ordinance (Gefahrstoffverordnung - GefSoffV)

The Hazardous Substances Ordinance is intended to protect people and the environment from harm caused by dangerous substances. Part 2 of the ordinance contains rules for the placing on the market of dangerous substances, mixtures and articles. Parts 3 to 6, containing the original provisions on occupational safety and health, apply to activities in which workers can be exposed to risks to their health and safety caused by substances, mixtures or articles. They also apply if the safety and health of other people can be put at risk by activities carried out by workers or by contractors without employees.

Hazardous Substances Ordinance (GefSoffV) (in German)

For practical use in the workplace, the provisions of the Hazardous Substances Ordinance are fleshed out by technical rules on dangerous substances (technische Regeln für Gefahrstoffe or TRGS), which are published on the website of the Federal Institute for Occupational Safety and Health.

Federal Institute for Occupational Safety and Health (BAuA)

Penalties for non-compliance with the Hazardous Substances Ordinance

Breaches of the provisions of the Hazardous Substances Ordinance can result in administrative fines of up to 50,000 euros, under Sections 21 to 24. In specific aggravating circumstances, for example in concrete cases of harm to people’s health, breaches can also be prosecuted as criminal offences and result in criminal fines or imprisonment.

Biological Agents Ordinance (Biostoffverordnung - BioStoffV)

The Biological Agents Ordinance applies to activities involving biological agents. It sets out measures to protect the safety and health of workers from risks caused by these activities. It also sets out measures to protect other people insofar as they may be at risk due to the use of biological agents by workers or by contractors without employees.

Biological Agents Ordinance (BioStoffV) (in German)

For practical use in the workplace, the provisions of the Biological Agents Ordinance are fleshed out by technical rules on biological agents (Technische Regeln für Biologische Arbeitsstoffe - TRBA), which are published on the website of the Federal Institute for Occupational Safety and Health.

Federal Institute for Occupational Safety and Health (BAuA)

Penalties for non-compliance with the Biological Agents Ordinance

Breaches of the provisions of the Biological Agents Ordinance can result in administrative fines of up to 25,000 euros, under Section 20. In specific aggravating circumstances, for example in concrete cases of harm to people’s health, breaches can also be prosecuted under Section 21 as criminal offences and result in criminal fines or imprisonment.

Compressed Air Ordinance (Druckluftverordnung - DruckLV)

The Compressed Air Ordinance applies to work in compressed air which is carried out by an employer on a commercial basis (Section 1 of the ordinance). Compressed air means air whose pressure is more than 0.1 bar above the surrounding atmospheric pressure; the working pressure is the pressure above the surrounding atmospheric pressure (Section 2 of the ordinance). The ordinance also contains other definitions, particularly in relation to working chambers and medical chambers, as well as personnel locks, materials locks and combined locks.

The Compressed Air Ordinance (and its annexes) requires employers to take many specific technical, organisational and personnel-related measures. This includes the following provisions, in particular:

• Employers must give notice, in writing or electronically, of work in compressed air to the competent authority in accordance with Section 3 of the ordinance no later than two weeks beforehand. The notice must comply with the requirements set out in Section 3 (2) of the ordinance and include the documents specified in Section 3 (3) of the ordinance. Notice of subsequent changes must be given without delay.
• Working chambers and facilities for their operation must be procured and operated in line with the requirements set out in Section 4 and Annex 1 of the ordinance, as well as generally recognised technical good practice. In addition, the operation of working chambers requires examinations to be carried out and certificates of those examinations to be provided by an expert recognised by the authorities under Section 7 of the ordinance.
• The bans on employment set out in Section 9 of the ordinance apply: workers may not work in compressed air at a pressure exceeding 3.6 bar above the surrounding atmospheric pressure. In addition, workers under 18 or over 50 may not work in compressed air.
• Medical examinations and certificates in accordance with Section 10 of the ordinance are a prerequisite for the employment of workers in compressed air. Under Section 11, workers who have experienced certain medical conditions may only resume work in compressed air if the doctor has ruled out health concerns which would preclude the resumption of this work.
• Doctors who take action under the ordinance must, in accordance with Section 13, have the necessary occupational healthcare expertise and specialist knowledge of work in compressed air, and must have been authorised by the competent authority.
• Employers must appoint an authorised doctor with compressed air expertise under Section 13 of the ordinance to perform tasks to prevent health risks for workers working in compressed air in accordance with Section 12 (1) of the ordinance.
• A notice showing the name, address and telephone number of the authorised doctor must be displayed in a location accessible to all workers at the site, in accordance with Section 12 (2).
• Under Section 17 (1) of the ordinance, certain facilities must be present where the working chamber is operated, and under Section 17 (2) they must meet certain requirements; in particular, these facilities include a medical chamber, a medical treatment room, recovery rooms, changing rooms and drying facilities, sanitary facilities and rescue facilities. Examinations and certificates of the examinations by an expert recognised by the authorities are required for the medical chamber, in accordance with the substantive and time-related requirements set out in Section 17 (3) of the ordinance.
• Under Section 18 of the ordinance, employers must appoint a number of competent persons with the specified qualifications and ensure that they perform their tasks properly.
• The documents specified in Section 19 must be kept on site.
• Employers must ensure that the workers receive briefings from the appointed doctor and the appointed competent persons in accordance with the substantive and time-related requirements set out in Section 20 (1). To this end, employers must give each worker an information sheet (in the worker’s language) in accordance with the substantive and time-related requirements set out in Section 20 (2).
• In addition, it is necessary to comply with the working time regulations set out in Section 21 and Annex 2. This applies, in particular, to decompression times and periods for which workers must remain on site after decompression, breaks, periods spent in the working chamber, rest periods between shifts, and maximum working times in compressed air.

Compressed Air Ordinance (DruckLV) (in German)

Penalties for non-compliance with the Compressed Air Ordinance

Section 22 of the Compressed Air Ordinance provides for regulatory offences within the meaning of Section 25 (1) no. 1 of the Safety and Health at Work Act in the event of intentional or negligent breaches of the ordinance.

An intentional act which endangers the life or health of a worker constitutes a criminal offence under Section 26 no. 2 of the Safety and Health at Work Act. This applies, in particular, in relation to:

• The notification of work in compressed air and the documents to be provided in accordance with Section 3 of the Compressed Air Ordinance; the operation of a working chamber in accordance with Section 7 of the ordinance;
• The employment or resumption of employment of workers in contravention of Section 9 or Section 11 of the ordinance;
• The ability to contact the authorised doctor and the placing on display of the doctor’s contact details in accordance with Section 12 of the ordinance;
• Expert examinations of the medical chamber and the presence of the required facilities on site as set out in Section 17 of the ordinance
• The appointment of competent persons as set out in Section 18 of the ordinance;
• The keeping of documents on site in accordance with Section 19 of the ordinance;
• The briefings for workers and information sheet in accordance with Section 20 of the ordinance;
• Breaches of the working time regulations under Section 21 (1) of the ordinance.

Other regulatory offences are set out in Section 22a of the Compressed Air Ordinance (employment of workers under the age of 18, in contravention of Section 9 of the ordinance) and Section 23 (breach of the working time regulations contained in Section 21 (4) or (5) of the ordinance).