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Freshfields TQ

Technology quotient - the ability of an individual, team or organization to harness the power of technology

| 3 minutes read

How employers in Germany could make use of contact tracing apps

This post is part of a series on contact tracing apps. You can read our introduction to the series and get links to the other entries here.

In Germany, discussions continue over the ideal data-privacy-compliant app. While there is not yet any clear indication when such an app will be available, employers should be considering whether and how such tools are to be used to help guarantee their workers’ safety and health, taking account of recent government recommendations.

In particular, employers need to know whether they can (or must) check if employees or visitors are using contact tracking apps, and how such information gathering should be implemented. These considerations are especially relevant in a context of progressive deconfinement, where workers begin to return to their employers’ premises.

The COVID-19 Occupational Safety and Health Standard for employers

Outlining that security and protection of health are the two main priorities when it comes to working in the COVID-19 pandemic context, the German government has issued recommendations for a COVID-19 Occupational Safety and Health Standard. The Standard  defines the measures employers should take to protect employees (and the population more broadly) to reduce the spread of the virus and continue to flatten the infection curve.

Firstly, the Standard lists the technical measures for employers to implement, including:

  • arranging the workplace so that employees keep a safe distance of at least 1.5m;
  • providing hand sanitisers in washroom facilities and communal spaces (eg canteens and break rooms);
  • regularly ventilating the office;
  • offering the option of working from home where possible; and
  • reducing business trips and face-to-face interactions to the absolute minimum.

Secondly, the Standard details the organisational measures at the employers’ disposal, namely:

  • adapting means of access and marking out safe distances;
  • individually assigning tools and work equipment, or enabling regular cleaning before handover; and
  • organising working times and breaks so that occupancy of work areas and communal spaces are reduced as much as possible.

Finally, the Standard concludes with personal measures, explaining that where contact cannot be avoided and distance cannot be maintained:

  • mouth-and-nose protection as well as personal protective equipment should be provided and worn at all times.

Employers need to clearly communicate these occupational safety and health measures, and ensure all employees comply with them at all times.

Contact tracing apps as occupational safety and health measures available to employers? 

Contact tracing apps, or more generally, contact tracing methods, are not explicitly mentioned in the Standard. Nor is it possible to interpret the Standard as making indirect reference to contact tracing apps as an occupational safety and health measure for employers.

Employers are obliged to follow up contacts of their employees if they are asked to do so by the public health authorities, namely to investigate a specific chain of infection.

The contact tracing apps currently developed under supervision of various German authorities (ie Federal Ministry of Health, Robert-Koch-Institute and Federal Office for Security and Information Technology) have not been conceived as such. They tend to be of public interest, whereas employers are expected to adopt measures within the scope of their operation (and by doing so, they will not only protect their employees, but also the whole population).

Also, all tracing app concepts currently under discussion will rely on an individual’s voluntary decision to install, use and follow the advice of such an app. Consequently, employers will not be able to access their employees’ apps to collect information (ie to trace chains of infections at their own discretion and take appropriate measures on this basis) or check whether employees (or visitors) have such an app installed on their business or private cell phones.

Therefore, employers can only encourage their employees to use contact tracing apps and, if they choose to do so, must make clear that only individuals freely consenting to use the app should do so.

Other posts in this series:


covid-19, europe, data protection, data, intellectual property, employment