In light of the Covid-19 pandemic, many employers in Germany are requiring workers to wear masks. Could these workers be entitled to additional pay under collective agreements?
Workers are entitled to a hardship allowance under various collective agreements if they must wear a respirator at work. For example, the framework collective agreement for industrial cleaning workers, which has been declared generally binding, provides for a 10% increase in the pay rate if workers are required to wear a respirator during work. Is this surcharge also payable if the employer requires the employees to wear either a cloth nose and mouth protection or a simple surgical mask during work?
Under the collective agreement rules, the surcharge applies only to the wearing of breathing masks. Even according to the wording of these rules, simple surgical masks or so-called everyday masks are not considered to be respiratory masks. That is because they do not protect the wearer from particles or viruses, but rather protect others from droplet infection. During the negotiations on the collective agreement rules, the parties could not foresee that, for example, cleaning staff would need to wear surgical masks or everyday masks at work. Rather, the parties to the collective agreement wanted to regulate the payment of an allowance for the wearing of FFP1 to FFP3 masks, which filter incoming particles and aerosols and are intended to protect the wearer.
A systematic comparison with various regulations issued by the German Institute for Standardisation ('DIN') and the German Social Accident Insurance Association ('DGUV') also shows that simple surgical masks or everyday cloth masks are not respiratory masks within the meaning of the collective agreement. According to the definition in the DGUV regulations, respiratory protection devices are personal protective equipment that protect the wearer from inhaling pollutants from the ambient atmosphere or from lack of oxygen. As is well known, simple surgical masks or everyday masks do not fulfil these requirements. The applicable DIN regulation also only covers FFP1 to FFP3 masks. Thus, neither a surgical mask nor an everyday mask fall under these regulations.
Wearing an FFP1 to FFP3 mask increases breathing resistance, and it is this increased level of breathing difficulty that justifies the 'hardship' supplement set out in the collective agreements. In contrast, surgical or everyday masks do not significantly increase breathing resistance. Thus, the supplement can only be compatible with the purpose of the collective agreement rules if it is limited to FFP1 to FFP3 masks.
As a result, employers only have to grant hardship allowances under the collective agreements if they require the wearing of a mask meeting the FFP1 to FFP3 standard. The hardship allowance is not payable if the mask is a simple surgical mask or a sewn fabric mask.
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