Stricter hygiene provisions for the food retail sector

Times of crisis are also heydays for regulation. This is also the case with COVID-19. The gathering of a large group of persons was already prohibited. Now it is time to comply with stricter regulations in the (privileged) supermarkets as well. The Federal Chancellor speaks of a new normality to which we need to become accustomed. A quick look at the latest decree of the responsible Federal Minister (GZ: 2020-0.210.637) provides orientation:

1.
Personal hygiene of employees (general)

Not surprisingly, food business operators are subject to a strict set of regulations. One particular focus is on the personal hygiene of those employees handling food. Among other things, they must maintain a high level of personal cleanliness and must wear suitable and clean work and, where necessary, protective clothing. In addition, employees in the food sector must e.g. not suffer from diseases likely to be transmitted through food or have infected wounds, skin infections or injuries, etc. (see Annex II of Regulation (EC) No. 852/2004 for details).

These legal hygiene standards and health requirements are described in very general terms, but are specified in guidelines issued by the responsible Federal Minister and the "Food Codex Commission".

What in normal times are mere recommendations mutates in the COVID-19 crisis into "quasi-legal norms". The decree stipulates that these guidelines must be observed on a mandatory basis.

2.
Specific hygiene provisions to prevent the spread of COVID-19

Parallel to the measures described aboe, special hygiene provisions are adopted for supermarkets and drugstores / drugstore chains (which are exempt from the statutory restrictions to access customer areas of shops).

There is a total of 14 specific COVID-19 hygiene provisions. We try to categorise them, whereas the decree is content with a mere enumeration:

General / customer-related equipment

• as soon as mechanical protection devices are available in the store:
  • free provision of mechanical protection devices to customers, unless they bring their own masks.
  • Access control, so that only customers with "mask" are allowed to enter the sales area.
• Access control to ensure that the maximum number of customers who may be present in the store at one time is not exceeded. The maximum number will be set by the shop operator such that the prescribed 1-metre safety distance amongst the persons present in the shop can be maintained. When this number is reached, the "one-in-one-out" principle will apply. Up to now we only know this from TV pictures of supermarkets in nearby countries.
• Disinfectant dispenser in the entrance area.
• Disinfection of the handle of shopping trolleys after each customer use.
• Regular cleaning and disinfection of surfaces / devices (e.g. freezer handles) that are regularly touched by customers.
• Plexiglas protection for all checkouts that are operated by an employee.
• Floor markings in the checkout area for checking and maintaining the prescribed safety distance of one meter.
• Sales areas should be designed in a way that the safety distance can be maintained.
• Shopping trolleys should be used to ensure that the safety distance is maintained.

Employee-related provisions

• Mechanical protection devices (vulgo face masks) should be worn (mechanical barrier against droplet infection).
• Mandatory wearing of gloves in the customer area, although this does not release from the obligation to comply with the required hand hygiene (wash - wash - wash).
• The employees are encouraged to recommend to customers the option of contactless payment
• Notice to customers (poster/pictograms) that, in case of symptoms, the business premises may not be entered.

Do you count only 13 provisions? Then you're right, but we've consolidated two provisions.

The food retail sector has complained in advance of having been taken by surprise. The Federal Minister is therefore granting an implementation period until 6 April 2020 (whereby "without delay" is meant). In addition, shops with a customer area of less than 400 m² will be privileged. They only have to comply with the general protective measures against the coronavirus (COVID-19), e.g. regular thorough cleaning of employees' hands with soap or a disinfectant, keeping a distance of at least one metre and observing respiratory hygiene of employees.

What’s next? The decree is also explicit here. "It is requested that this decree should be forwarded to the respective authorities competent to enforce the Austrian Food Safety and Consumer Protection Act (Lebensmittelsicherheits- und Verbraucherschutzgesetz) and to the health authorities in the respective enforcement area and to monitor compliance with it.“

Please note: This newsletter merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The newsletter cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the newsletter.