Basic duties, risk assessment and safety instruction

A joinery with seven employees receives a visit from the occupational safety authority. The dust extraction, the blade guards and the first-aid kit are fine, but there is no risk assessment anywhere. The authority orders the business to produce one within a deadline. Anyone who ignores such an enforceable order risks a fine of up to 30,000 € under section 25 ArbSchG, for a document the business could have written itself.

Who is bound and who is protected

According to its section 1, the Arbeitsschutzgesetz (ArbSchG) is meant to secure and improve the safety and health of employees at work. It applies in every field of activity, from the office to the building site. The Act sets no minimum size for a business: the duties arise as soon as anyone is employed at all.

Under section 2(3), an employer is any natural or legal person and any partnership with legal capacity that has employees. That covers the sole trader with one temporary helper just as much as the limited company with forty staff or the limited partnership running one branch.

Under section 2(2), employees are above all workers, persons employed for their vocational training and persons similar to employees, with the exception of home workers. Apprentices therefore count in full. The remaining groups on the list, such as civil servants, judges or soldiers, concern the public sector.

Section 1(2) excludes the occupational safety of domestic staff in private households. A private individual who employs a household helper does not fall under this Act. If the same person works in the shop or office of the business owner, however, the Act applies without restriction.

Besides the employer, section 13(1) names further responsible persons: the legal representative, the body authorised to represent a legal person, partners with power of representation in a commercial partnership, and persons entrusted with managing a business within their powers. In a limited company the managing directors are therefore personally bound.

Under section 13(2), the employer may instruct reliable and competent persons to carry out his tasks on their own responsibility. The Act requires this instruction to be in writing. An oral arrangement with the workshop foreman therefore does not shift the responsibility.

The basic duties: act, check, adapt

Section 3(1) obliges the employer to take the necessary measures while considering every circumstance that affects safety and health at work. The duty does not end with implementation: the measures must be checked for effectiveness and adapted when circumstances change.

The Act also requires the employer to strive for an improvement in safety and health protection. Occupational safety is therefore not a state that is reached once and ticked off, but a cycle of assessing, acting and checking. The documentation under section 6 later records exactly this cycle.

To plan and carry out the measures, section 3(2) requires the employer to provide a suitable organisation and the necessary resources. The yardstick is the type of activities and the number of employees. An office of three people can manage with a leaner organisation than a metalworking shop running shifts.

He must also make arrangements so that the measures are observed in all activities and embedded in the management structure of the business. Anyone who appoints a supervisor therefore tells him expressly which safety rules he is to enforce, instead of trusting that this will happen by itself.

Section 3(3) contains a rule that small businesses tend to overlook: the employer may not pass the cost of the measures on to employees. Safety shoes, hearing protection or safety goggles needed as an occupational safety measure are therefore not deducted from wages.

Under section 7, when assigning tasks the employer must check whether employees are capable of complying with the safety rules that apply to them. Anyone who puts a new helper at the circular saw without clarifying this is already in breach of duty before anything has happened.

Eight principles for every measure

Section 4 lays down eight general principles from which the employer must start for every measure. They do not say what to do in a particular case. They do, however, fix the order in which solutions are to be sought and which solution takes priority over another.

• design work so that hazards to life and to physical and psychological health are avoided where possible and remaining hazards are kept low
• combat hazards at their source
• take into account the state of the art in technology, occupational medicine and hygiene as well as established ergonomic knowledge
• link technology, work organisation, other working conditions, social relations and environmental influences in a sensible way
• use individual protective measures only as a last resort
• take account of specific hazards for particularly vulnerable groups
• give employees suitable instructions
• allow rules with a gender-specific effect only where biological reasons make them imperative

The most important practical consequence is the order of priority. Hazards are tackled at the source, and personal protective equipment comes last. Before handing out ear protection, a business therefore asks whether the noisy machine can be enclosed, replaced or moved to another room.

The first principle expressly mentions physical and psychological health. Work is to be designed so that hazards are avoided where possible and those that remain are kept as low as possible. The Act thereby puts the mind on the same level as the back, the hearing and the lungs.

Particularly vulnerable groups, such as young people or pregnant women, must be considered separately, and employees need suitable instructions. A measure that exists only on paper and has never been explained to anyone does not meet these principles.

The risk assessment: what has to be assessed

The core of the Act is section 5. By assessing the hazards connected with the work, the employer determines which measures are necessary. The assessment therefore comes first: without it, nobody can explain why a measure was taken or left out.

The assessment follows the type of activities. Where working conditions are similar, section 5(2) allows one workplace or one activity to be assessed for all of them. Four identically equipped checkouts therefore need only one assessment, but the storage area with a pallet truck next to them needs its own.

Section 5(3) lists six sources from which a hazard may arise in particular. The list is not exhaustive, but it works as the outline of any assessment. The table turns the six sources into questions a small business can ask itself.

A step-by-step approach has proved its worth: record the activities, identify and evaluate the hazards, set and implement measures, check their effectiveness and update the assessment. The Act does not prescribe these steps word for word, but they follow from sections 3(1), 5 and 6 read together.

For workplaces, section 3 of the Workplaces Ordinance (ArbStättV) spells the duty out. The employer first establishes whether hazards arise from setting up and operating the workplace. If so, he assesses all possible hazards, including the effects of work organisation and workflows.

If the business employs women, section 10 MuSchG additionally requires, within the same assessment, that hazards for pregnant or breastfeeding women be assessed for every activity. The details are in the course on maternity protection; here it is enough to know that this check belongs in the general assessment.

Psychological strain is part of it

Section 5(3) no. 6 expressly names psychological strain at work as a source of hazard. An assessment that covers only machines, substances and tripping hazards is therefore incomplete, even in a business without any dangerous equipment, such as an agency or a medical practice.

What is meant is strain arising from the work itself, not the private situation of individual people. Typical starting points are workload and time pressure, constant interruptions, unclear responsibilities, difficult customers, lone working, unfavourable shift patterns and lack of room for decision.

The Workplaces Ordinance likewise requires in section 3(1) that physical and psychological strain be taken into account. For screen workstations it expressly mentions strain on the eyes and risks to eyesight. In an office, these are the topics an assessment takes up first.

It is the working conditions that are assessed, not the people. A staff survey, a moderated team discussion or observing typical working days are common approaches. The Act leaves the method open; what matters is that the result and the measures are recorded in a way others can follow.

The order of priority in section 4 applies here too. Anyone who finds time pressure starts with staffing, scheduling and workflows, not with a stress management seminar. Such a seminar can supplement a change in working conditions, but it cannot replace one.

Long working days are a frequent source of psychological strain. The statutory maximum working hours and rest periods are explained in the course on the Working Hours Act; the linked calculator checks a duty roster against those limits before it takes effect.

Competent, before work starts, and on record

Section 3(2) ArbStättV requires the risk assessment to be carried out competently. If the employer lacks the knowledge, he must obtain competent advice. The obvious advisers are the company doctor and the occupational safety specialist, who are introduced in the second module.

Under section 3(3) ArbStättV, the assessment must be documented before the activities begin. The record states which hazards may occur at the workplace and which measures must be carried out. A new workplace is therefore assessed first and staffed afterwards, not the other way round.

Section 6(1) ArbSchG requires records showing three things: the result of the risk assessment, the measures decided and the result of checking them. Where the hazard situation is similar, summarised information is enough. The current wording contains no exemption for small businesses.

Scope and form depend on the type of activities and the number of employees. A hair salon manages with a few pages, a metal workshop needs more. There is no official form for it; a table or a digital list is sufficient if the content is right.

Section 6(2) also requires the employer to record accidents in which an employee is killed or is wholly or partly unable to work for more than three days. This internal record is not the accident report to the Berufsgenossenschaft, which is covered in the course on statutory accident insurance.

The assessment is not a document for the drawer. When machines, workflows, rooms or staff change, or after an accident, it is reviewed and updated. This follows from the duty in section 3(1) to adapt measures to changed circumstances.

Safety instruction: before the first task

Section 12(1) obliges the employer to give employees sufficient and appropriate instruction on safety and health at work, and to do so during their working time. Unpaid instruction after the end of the working day is therefore ruled out.

The instruction consists of directions and explanations tailored specifically to the workplace or the area of responsibility. A general talk about safety is not enough. Whatever the risk assessment lists as a hazard and a measure belongs in the instruction.

The Act names the occasions: recruitment, changes in the area of responsibility, the introduction of new work equipment and the introduction of new technology. In every case the instruction must take place before the activity starts, that is before the person performs the new task for the first time.

It must be adapted to how the hazards develop and repeated regularly where necessary. Section 12 sets no fixed interval. Fixed repetition periods are found in accident prevention regulations and special statutes; this course does not quantify them because they are not in the Occupational Safety and Health Act.

With temporary agency work, section 12(2) places the duty to instruct on the hirer; more on this in the course on agency work. Where employees of several employers work in one place, such as tradespeople from different firms on a building site, section 8 requires the employers to cooperate and inform each other about the hazards.

Section 12 does not expressly require the instruction to be documented in writing. A list with date, content and signatures is nevertheless the simplest proof towards the authority, which under section 22(1) may demand information and the handing over of documents.

What employees contribute

Under section 15, employees must take care of their own safety and health as far as they are able and in line with instruction and directions. They must use machines, substances, protective devices and the personal protective equipment provided as intended.

Under section 16(1), they must report without delay any immediate serious danger they notice and any defect in protective systems. Section 17 gives them the right to make suggestions and, after an unsuccessful complaint to the employer, allows them to turn to the authority without suffering any disadvantage.