When the ordinance on occupational medical health examinations (ArbMedVV) came into force on 24/12/2008, the occupational medical health procedures based on the ordinance on hazardous substances were also incorporated into the ArbMedVV. In the event that an employee works with certain hazardous substances, a medical examination must be arranged by the employer if the workplace limit value in terms of the Hazardous Substances Ordinance cannot be adhered to. However, there is currently no valid workplace limit value for some of the substances mentioned in the ArbMedVV. In some cases the assumption is that the procedure to be followed in the case of non-existent workplace limit values is the same as if the limit value had not been adhered to (see also DGUV Forum, Edition 5/2011, pages 16 and following). However, this interpretation of the law constitutes a misinterpretation of the administrative and criminal law governing the ArbMedVV. According to legal precedence, it violates the right to freedom and the rule-of-law principle to justify intervention on the mere basis of similarity. Criminal law also prohibits such analogies, as may be seen from Art. 103 Par. 2 GG. Thus, where the employer fails to initiate the obligatory examination in terms of Section 4 Par. 1 ArbMedVV in the event of missing workplace limit values, or where he fails to adhere to the prohibition on activities in terms of Section 4 Par. 2 ArbMedVV, he commits neither an administrative nor a criminal offence. Where no workplace limit value has thus been defined, the employer‘s legal obligation to initiate a compulsory examination in terms of the ArbMedVV does not apply. In the same way, the occupational medical health examination will no longer serve as a precondition for working in terms of Section 4 Par. 2 ArbMedVV in such cases.
