According to §5 of the Occupational Health and Safety Act, employers are obliged to protect their employees by carrying out a special risk assessment and deriving suitable measures to ensure health and safety at work.
This is well known - but what about the employees themselves? Do they have a duty to cooperate in occupational health and safety?
To anticipate the answer to this question straight away: Yes.
Employees must also ensure that their own health and safety at work is protected in accordance with the employer's instructions and directions and to the best of their ability (in accordance with Section 15 (1) sentence 1 ArbSchG)
The most important facts in brief
✓ Employees are obliged to actively contribute to health and safety in the workplace, both for themselves and for others, in accordance with Section 15 (1) sentence 1 ArbSchG.
✓ The obligations to cooperate are set out in various regulations such as BGV A1 and DGUV Rule 100-001, which specify the responsibilities of employees in occupational health and safety.
✓ Violations of the obligation to cooperate can have consequences under criminal law, regulatory offense law and employment law.
Where are the employees' obligations to cooperate regulated?
The obligations to cooperate can be found in the prevention principles of the employers' liability insurance association (BGV A1). They refer to the obligations of employees in occupational health and safety, as well as the behavior of the insured persons.
In the Occupational Health and Safety Act, the legislator has also mentioned general and specific duties of employees. All employees are therefore obliged to act safely and comply with occupational health and safety regulations with the aim of not endangering themselves or others.
According to Section 15 (1) sentence 2ArbSchG, the duty to cooperate does not only apply to the well-being of the employees themselves, but also includes all other persons who are affected by their actions or omissions at work - the principle therefore applies not only to their own health and safety at work, but also to that of others.
Which principles of the duty to cooperate apply to employees in occupational health and safety?
With regard to occupational health and safety, all employees have specific duties to cooperate in accordance with the accident prevention regulation "Principles of Prevention", which are specified in the associated DGUV Rule 100-001.
These duties include:
1. ensure safety and health
All employees are responsible for their own safety and that of their colleagues. They must follow agreements and operating instructions to minimize potential hazards.
2. correct use of facilities and materials
In order to avoid accidents and health risks, work equipment, facilities, working materials, protective equipment and personal protective equipment must be used in accordance with their intended function.
3. provide first aid
Employees should be able to provide effective first aid and, if necessary, take part in first aider training in order to be able to provide support in an emergency.
4. avoidance of alcohol, drugs and certain medications
The use of these substances can impair the ability to work and represents a potential danger. Employees must not endanger themselves or others by using such substances in the workplace.
5. compliance with access and residence bans
Employees may only be in hazardous areas as part of their duties and should be aware of which areas could pose potential hazards.
6. the obligation to report
The employee is legally obliged to notify the employer immediately of any immediate, significant risk to health and safety that he or she identifies (in accordance with Section 16 (1) ArbSchG).
If an employee discovers a defect in a machine, for example, they must inform their employer immediately.
In addition, employees have a right and duty of notification. This applies in the event that, based on concrete evidence, they come to the conclusion that the measures defined and resources provided by the employer are not sufficient to adequately protect health and safety.
If the employer does not respond to complaints in this regard, the employee can contact the competent authority (Section 17 (2) ArbSchG).
7 The duty to provide support
Employees must do their part to ensure their own health and safety. For this reason, they are obliged to cooperate with the company doctor and the occupational safety specialist in order to support the employer in providing protection (in accordance with Section 16 (2) ArbSchG).
8. the overload notice
If an employee realizes that he or she is no longer able to perform his or her work under his or her own steam without ruling out damage and legal violations as a result, he or she is obliged to report this to the employer. As a consequence, the employer is obliged to take remedial action.
The basis of this regulation lies in labor law (according to § 618 BGB, among others), general civil law (according to § 241 (2) BGB) and occupational health and safety law (according to § 15 ArbSchG and § 16 (1) ArbSchG).
Important: This principle does not release employees from their duty to take care of their own health and safety. He or she must continue to do everything reasonable to prevent possible damage.
What about intoxicants such as alcohol?
Employees must not endanger themselves or others by consuming intoxicants such as alcohol or other drugs while carrying out their work.
As a result, it is essential to study the package leaflet in detail when using medication in order to rule out any intoxicating side effects. This applies in particular to activities involving driving, controlling or monitoring.
What legal consequences can result from a breach of the duty to cooperate?
Occupational health and safety law alone contains few independent liability provisions. The legal consequences are therefore derived from criminal law, administrative offense law, labor law and civil law.
It should be noted that penalties can only be imposed in the event of negligent and willful disregard.
Under criminal law, fines or imprisonment may be imposed depending on the severity and consequences of non-compliance. Furthermore, warnings and fines can be imposed under administrative offense law.
If third parties are harmed as a result of non-compliance, the insurance company may also be liable for damages and/or recourse.
Irrespective of these facts, measures can also be taken under employment law, ranging from a warning to dismissal.
