According to Section 618 Para. 1 BGB, the authorized person must set up and maintain rooms, devices or equipment and regulate services in such a way that the obligated person is protected against danger to life and health to the extent that the nature of the service allows.
§ 5 para. 1 Workplace Ordinance (ArbStättV) as a specification of Section 618 Para. 1 BGB stipulates that the employer must, if necessary, issue a general or restricted smoking ban to individual areas of the workplace. In workplaces with public access, the employer must, in accordance with Section 5 Para. 2 ArbStättV, protective measures should only be taken to the extent that the nature of the business and the type of employment allow it.
According to the decision of the Ninth Senate of May 19, 2009 (9 AZR 241/08), the reasonableness limit exists according to Section 5 Para. 2 ArbStättV only if the employer exercises freedom of entrepreneurial activity in a lawful manner. The exercise of, among other things. from § 5 para. 2 ArbStättV, the freedom of entrepreneurial activity protected by legal prohibitions such as the ban on tobacco smoking in restaurants in accordance with Section 2 Para. 1 No. 8 of the Berlin Non-Smoker Protection Act of November 16, 2007 (NRSG). According to the Federal Constitutional Court’s decision of July 30, 2008, the smoking ban is incompatible with Article 12 Para. 1 GG and therefore unconstitutional. § 2 para. However, 1 No. 8 NRSG remains applicable until a new constitutional regulation is made due to the great importance of protecting the population from the dangers of passive smoking. There is no constitutional objection if the protection of the health of restaurant staff is made a concern of a state non-smoker protection law, even though the federal government has competing legislative authority for occupational safety in accordance with Article 74 para. 1 No. 12 GG is entitled.
The working time standards under occupational safety law also include the regulations on the granting of rest breaks in accordance with. §§ 4, 7 para. 1 No. 2 ArbZG. Rest breaks iSv. § 4 ArbZG are breaks in working hours of a certain duration that serve to relax. These must be breaks in working hours that have been determined in advance, during which the employee does not have to do any work or be available for it. He must be free to decide where and how he wants to spend this time. The crucial feature of the rest break is that the employee is released from any work obligation and also from any obligation to be available for work. In its judgment of October 13, 2009 ( 9 AZR 139/08 ), the Ninth Senate decided that breaks in driving time for tram drivers, during which the employee does not have to perform any work, are not required to be ready to work and are at least eight minutes long, are not working hours in the sense of. § 2 para. 1 sentence 1 ArbZG, but rest breaks in the sense of. §§ 4, 7 para. 1 No. 2 ArbZG in conjunction with § 9 para. 2 No. 2 of the collective agreement regulating working conditions in the local transport companies in the state of Berlin (TVN Berlin). Short breaks iSv. § 7 para. 1 No. 2 ArbZG, provided they meet the general requirements for a break, are rest breaks in the sense of. § 4 ArbZG. Short breaks of at least eight minutes are regularly of a reasonable duration. § 7 para. 1 No. 2 ArbZG. Within the framework of collective bargaining autonomy, the relevant parties to the collective agreement are entitled to a prerogative of assessment with regard to the actual circumstances and the interests affected. However, the duration of the work interruption must be determined in advance. This is the case if there is a break in driving time provided for in the duty roster.