Occupational health and safety compliance – An underrated liability risk for companies

Occupational health and safety tends to be relegated to the sidelines at many companies, probably not least because public occupational health and safety authorities are conducting fewer inspections. The European SLIC Report 2017 more or less openly pointed out the unwanted failure of public occupational health and safety supervision in Germany in terms of legal policy. The human resources of the supervisory authorities in the federal states responsible are no longer sufficient to ensure a reasonable frequency of inspections, especially active visits to business establishments. Also, the workforce structure is too old, meaning that over the next few years a huge loss of knowledge is likely as staff retire. The SLIC Report 2017 is also highly critical of the poor use of digital information and recording channels as well as the downward trend in penalties for breaches of occupational health and safety.

The government has recently responded to the overly low number of inspections and, almost unnoticed, introduced major changes to the German Occupational Health and Safety Act (Arbeitsschutzgesetz – ArbSchG) via the German Occupational Health and Safety Monitoring Act 2021.

Introduction of a minimum inspection frequency

The competent authorities for occupational health and safety must ensure by 2026 that at least 5 per cent of establishments in the federal state are inspected each calendar year. This will lead to a substantial increase in business inspections, but more human resources must first be recruited.

Direct transmission to statutory accident insurers

In addition, from 1 January 2023, the occupational health and safety authorities must send the results of the business inspections carried out directly to the relevant statutory accident insurer (employers’ liability insurance association) in electronic form. The data to be transmitted includes an assessment of the organisation of occupational health and safety, including training, and an evaluation of the risk assessments prescribed by statute, including identifying risks, defining actions, and monitoring the implementation and documentation of actions.

Inspections by the occupational health and safety authorities

The occupational health and safety authorities are not only able to intervene when there is a specific risk to employees, but they also have comprehensive rights to monitor compliance with occupational health and safety regulations.

The occupational health and safety authorities will check in particular whether the employer has carried out the risk assessment prescribed in section 5(1) of the German Occupational Health and Safety Act. The obligation to carry out a risk assessment exists not only in that Act, but also in numerous German regulations such as the Biological Substances Regulation (Biostoffverordnung – BioStoffV), the Workplace Regulation (Arbeitsstättenverordnung – ArbStättV) and the Industrial Safety Regulation (Betriebssicherheitsverordnung – BetrSichV). Surprisingly often, this legal obligation is not taken seriously, yet non-compliance with the Industrial Safety Regulation, for example, leads to chronic breaches of the law. For instance, under the Industrial Safety Regulation, employers are not allowed to use technically work equipment, whether hammers or production lines; and a CE mark of course does not release the employer from the obligation to carry out a risk assessment.

Consequences for companies

If shortcomings are identified by the relevant occupational health and safety authority and not resolved by the company within the deadline set, a fine of EUR 30,000 can be imposed. The Industrial Safety Regulation, for instance, goes even further, with a fine already being payable if a risk assessment has not been conducted, regardless of whether the occupational health and safety authority previously ordered a risk assessment to be done. In the case of especially serious breaches, the person responsible at the employer will be criminally liable.

However, non-compliance with occupational health and safety law is much more serious in the case of workplace accidents leading to serious injury or death: both the investigating public prosecutors (supported by specialists from the occupational health and safety authorities) and the employers’ liability insurance associations, which are the accident and pension insurers, will investigate the precise causes of the accident. Internal company processes such as correct training in accordance with occupational health and safety law or the existence of a factually correct risk assessment are usually the first documents that have to be submitted, in our experience. Since any claims to recourse by the injured person pass by law to the employers’ liability insurance associations, actions for damages by the recourse departments of the employers’ liability insurance associations are also on the cards.

What can companies do?

To minimise the legal liability risks, companies should perform an occupational health and safety audit to assess whether all occupational health and safety regulations are complied with. The following compliance aspects in particular should be taken into account:

• Has a risk assessment been conducted and documented? If so, has it been updated?
  
  
• Have all measures been taken to avoid or at least to minimise possible risks to employees?
  
  
• Have the employees been given training in health and safety?
  
  
• Have the above processes been properly documented?
  
  
• Are temporary staff covered by the German Temporary Agency Workers Act (Arbeitnehmerüberlassungsgesetz – AÜG) adequately integrated into all these occupational health and safety processes?
  
  

Conclusion

Occupational health and safety compliance will become more important over the next few years, not only due to more inspections being carried out. New issues of occupational health and safety will emerge through more flexible working in many areas (such as remote working) and the use of fundamentally new technologies (such as artificial intelligence).