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4. May 2021 | Legislation

Covid 19: Minimising risks and ensuring compliance

Michael Dennerlein, Umco

The environmental and occupational health and safety impact of the Corona virus (Sars-Cov-2) on companies varies by industry and location. This makes it necessary for companies to monitor legal compliance.

The novel coronavirus and the resulting restrictions have taken many companies by surprise and the economic impact will be felt for a long time to come.
Image source: wladimir1804 - stock.adobe.com

What happens when there is a case of Covid-19 in a company? Essentially, the key elements of the necessary measures to be implemented will have been set out in the pandemic preparedness plan. This will also contain guidelines on how the technical and organisational response by companies is to be managed during the various pandemic phases. The problem for companies is that, up to now, their emergency plans have been directed at responding to damaging events, such as fires, serious accidents and environmental impacts. Over the years, certain routines have become established which are reviewed in the form of regular checks, e.g., by insurance companies, supervisory authorities (for compliance with requirements of occupational safety and environmental protection), and audits.

Companies which, e.g., are subject to extended requirements, or which require a special permit to operate, will be more familiar with the development and maintenance of emergency response plans than others. However, when the new coronavirus came along, even companies which had established crisis teams in place found themselves in unfamiliar and uncharted territory. Up to then, the competencies needed for assessing the effects of a virus were previously only to be found in specialist industries.

Legal compliance

Every well-run company maintains a legal compliance register of the various laws that apply to it. These may be grouped under such headings as occupational health and safety, the environment, or dangerous goods. This affords a way of continuously monitoring and performing in-house assessments of any changes that arise. The compliance register should provide an overview of derived obligations. Up until now, scant consideration has been given in such registers to corona-related rulings, international health regulations (IHR), laws on the prevention and control of infectious diseases and guidelines on infection prevention and control, with the result that many companies deemed that derivable obligations were of no relevance to them.

Applicable requirements

The content of the laws listed is usually presented in a manner that is very abstract and of little practical relevance. For some companies it therefore rarely made sense to continuously track them in a legal compliance register. Only with the advent of the SARS-CoV-2 occupational safety standard were tangible measures published. Just as it is set out in the Occupational Safety and Health Act, this standard deems a virus to be a “work hazard” – and that clarifies the various responsibilities. It also sets forth the statutory hierarchy of protective measures to be implemented.

Special technical measures:

Special organisational measures:

Special personal measures:

Even though the laws and regulations passed by the EU or national governments must be followed, it has proved much more important in the context of the corona pandemic to keep track of regulations at the local level. In recent weeks and months, for example many federal states in Germany have made use of their power to issue ordinances under Section 32 of the German Law on the Prevention and Control of Infectious Diseases (IfSG); other countries issued general regulations.

The restrictions and requirements therein detail specific protective measures too and can extend and tighten them. The various ordinances issued by the federal states differ somewhat in terms of content, but especially in the timing of their promulgation. At an even lower level, individual cities and municipalities can take measures further again by, e.g., imposing total lockdowns or even shutting down factories.

Outlook

The novel coronavirus and the resulting restrictions have taken many companies by surprise and the economic impact will be felt for a long time to come. In future, emergency response plans will accord greater consideration than in the past to the risks posed by viruses. The absence of expertise in monitoring legal compliance has caused great uncertainty within companies, mainly because trustworthy sources are lacking or because they have fallen through the cracks.

This situation has been exacerbated by the speed with which legal requirements have changed and further-reaching differences at local level. Precisely in the area of occupational safety and environmental protection, it usually takes a long time for legal changes to be decided and to take effect. It is therefore essential to be able to develop expertise in the monitoring of legal compliance in order that impacts may be assessed quickly and efficiently.

Where this cannot be done in-house, a network of competent partners and service providers should at least be established to serve as expert contacts. Furthermore, even when no acute crisis exists, legal compliance monitoring should be a priority and the existing corporate structure should be reviewed as part of targeted compliance checks and audits to ensure that it is fit for purpose.
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