Germany Update: Employers are allowed to order corona tests

To protect employees from COVID-19 illness, many employers have developed organizational measures as well as measures as part of a hygiene concept in the last two years. Part of this hygiene concept is also a regular test strategy that enables employees to regularly test with antigen or PCR tests. The Federal Labour Court (BAG) has now ruled in a landmark judgment that the employer may be entitled to unilaterally order corona tests on the basis of his company protection and hygiene concept in order to implement the occupational health and safety obligations that apply to him (BAG of 01.06.2022 – 5 AZR 28/22). As justification, the BAG refers to the employer’s duty of care. So far, the verdict is only available as a press release.

Circumstance

The plaintiff was a flutist at the Bavarian State Opera. At the beginning of the 2020/2021 season, in addition to structural and organizational measures such as the conversion of the stage area and the new regulation of the entrances and exits, a test strategy was developed that provided for the implementation of PCR tests in prescribed periods of time. The employer offered free PCR tests, alternatively the employees could submit corresponding test results from a self-selected provider. The plaintiff refused the tests, whereupon the employer informed her that she could not participate in rehearsals and performances without testing. As a result of the plaintiff’s refusal to test, the employer stopped paying her salary from August to October 2020, and from November 2020, the plaintiff submitted PCR findings without acknowledging a legal obligation. By the action, it seeks the subsequent payment of the remuneration from the aforementioned period from the point of view of default of acceptance and, in the alternative, the payment of domestic practice. She justified the lawsuit with the mass tests, which in her view were inadmissible without cause, which also did not protect data protection or medical secrecy.

The lower courts dismissed the action.

Decision

The BAG dismissed the plaintiff’s appeal on a point of law against the judgment under Land labour law.

In the opinion of the BAG, the employer has a duty of care and can therefore issue instructions in the interest of occupational health and safety in order to protect the life and health of the employees. In the present case, due to the pandemic spread of the SARS-CoV-2 virus, the employer first made technical and structural adjustments against the background of the diffuse contagion and finally developed the hygiene concept based on the corresponding state regulations. From the point of view of the BAG, the instructions to the employees based on this concept correspond to equitable discretion, since the minimal interference with the physical integrity associated with the performance of the tests is proportionate, weighing up the interests of both parties. In view of the infection protection reporting obligations of positive test results as well as the resulting contact tracing, there is also no inadmissibility of the test order because of the fundamental right to informational self-determination.

According to this, the employer’s instruction for the implementation of the hygiene concept is lawful. As a result, there are no claims for remuneration due to default of acceptance, since the refusal of PCR tests by the plaintiff also entails a lack of will to perform on the part of the applicant.

Result

Even if the decision concerns a period before the statutory test obligation according to the 3G model in accordance with § 28b IfSG, it shows very clearly that employers can order measures to protect the health of employees beyond the legally required extent if they are implemented in the company hygiene concept. Although the current number of infections and comparatively mild disease courses currently do not give rise to any tightening of operational measures, it cannot be ruled out that with falling temperatures in autumn and winter, infections will rise again and hygiene concepts will also be adapted outside the legal requirements of the Infection Protection Act and corresponding state ordinances. The basic ruling of the BAG would then have implications for many employees, because until now both antigen and PCR tests outside the 3G rules were only possible on a voluntary basis. However, not every employer can oblige its employees to undergo regular testing. For this purpose, a balance of data and health protection must always take place. More lenient means available must be prioritised. Unlike the 3G model, the costs for the tests must be borne by the employer, and it should also be noted that the tests can be carried out during working hours. If there is an employee representation in the company, the right of co-determination must also be observed, because this is a prerequisite for the effectiveness of an order from the employer.The employee refusing the tests must in turn expect that he will not be able to enforce his wage claim as a result of the refusal, provided that the employer’s order was proportionate and the work must necessarily be performed at the place of employment. Nor is it excluded that one or the other employer may also consider terminating the employment relationship. If the obligation to test is regulated by an employment contract, its refusal is a breach of duty, which can be the starting point for termination without notice, if necessary after a warning and renewed request.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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