Requirements for project management from the ArbeitsMedVV

First of all, as a reminder: Until the last amendment of the Genetic Engineering Safety Ordinance (GenTSV), the project manager (project management) according to Section 14 Paragraph 1 No. 5 GenTSV aFua was responsible for “arranging preventive occupational health examinations and recording them” According to the ArbeitsMedVV (Work Medical Device Ordinance). With the amendment of Section 27 Paragraph 1 No. 6 GenTSV, which came into force on 1 March 2021, the project management is now responsible for “the implementation of occupational health care” responsible.

It literally says:

“He is responsible …… 6. for carrying out the instructions for employees in accordance with Section 17 Paragraph 4, for the implementation of occupational health care and for the recording of accidents, ….”

In practice, this raises the question of how the term "implementation of occupational health care" should be understood. Unlike "initiation," the term implies a review of success. The term "implementation" cannot be interpreted based on the legal justification. It only states the following:

"Occupational health preventive measures, including preventive occupational health care, are defined as an operator's duty. It is undisputed that the operator or employer can delegate occupational health tasks to suitable persons. How they do this is subject to their entrepreneurial or duty of care. The employer's responsibilities include, among other things, organizing preventive occupational health care. This can... Neither in relation to Section 28 GenTSV nor in relation to Section 27 GenTSV may the information be submitted to the project manager by regulation . This option is the responsibility of the operator or employer and can be delegated to the project manager within the framework of the internal occupational health and safety concept."

Aside from the fact that this description of delegation is misleading, it is also unhelpful in interpreting the term "implementation." In small corporate units where, in addition to the operator , there is only one project manager as department head, the operator can delegate the responsibility for regularly reminding employees about the various preventive medical examinations to the project manager. They can instruct the project manager to regularly offer employees a specific preventive medical examination and to document this reminder in a reminder list, confirming that the reminder to employees regarding the preventive medical examinations has been made.

It becomes difficult when the project management is not at the level of a department head, since it is undisputed that operator obligations , in particular employer obligations, cannot be delegated below the level of the department head (cf. Sections 29, 31 OWiG).

It is particularly difficult in large companies when there is a lack of communication between the employer (the company) and the project management. Human Resources Department is interposed. In this case, the GDPR applies without restriction, since the data relating to personnel is in any case personal data. If the term "implementation" is to be understood more broadly than the term "causing" it, then it is probably not sufficient for the project management to regularly request the HR department to write to employees about the preventive occupational health examination. This would at best correspond to the term "causing" it. However, if the project management is responsible for implementation in the sense of success, then the project management must check whether the HR department has actually informed the individual employees about the preventive occupational health examinations and, if applicable, offered them. With such a request, the project management cannot legally address the HR department, nor may the HR department make a corresponding notification with regard to individual employees. This does not even address the problem that employees may have to be offered different preventive occupational health examinations. It is difficult to say how this implementation of preventive occupational health can actually be carried out legally in practice. At best, it would be conceivable for the project management to compile an annual list of employees and the corresponding occupational health screenings, address it to the human resources department via the operator, and request that the list be returned to the operator, not to themselves, with a note of completion. This could be GDPR-compliant, but has the disadvantage that the project management itself would not know whether it has actually fulfilled its obligation under Section 27, Paragraph 1, No. 6 of the GenTSV. According to the statements made by the legislator above, it might have been more appropriate to leave the responsibility for initiating the occupational health screenings to the project management, in the sense of reminding them of the need for occupational health screening.