Denial of access to the workplace without a corona test

Labor Court Offenbach am Main of February 4, 2021 - 4 Ga 1/21

In the last Labor Law Update, we already dealt with the question of whether and under what conditions the employer can order the employee to undergo a corona test before starting work. The press release of the Labor Court Offenbach am Main (Case No. 4 Ga 1/21) dated February 4, 2021, which has been published in the meantime, gives reason to revisit this topic. 

According to this press release an employee's motion for interim relieve to continue working for the employer without prior corona testing was unsuccessful. 

Press release content

The reason for the legal dispute was that the employer refused to allow the employee to enter the factory premises and thus to take up his work activities, because the employee refused to carry out a PCR test which, in the opinion of the employer, was stipulated in a works agreement. 

The employee did not want to accept this and sought urgent legal protection to be employed even without the corona test. He took the view that the instruction to carry out the test violated his right to self-determination. It was neither covered by the employer's right to issue instructions nor by the works agreement. The PCR test constituted an invasive intervention in physical integrity and was therefore disproportionate.

The judges of Chamber 4 of the Labor Court in Offenbach am Main rejected the motion and justified this, among other things, on the grounds that the employee had already failed to prove the urgency of an immediate ruling. A special, urgent interest in employment was not discernible. 

The publication of the reasons for the decision is still pending.

Significance of the decision for practice

Although a final assessment of the decision is not possible without studying the reasons for the decision, the press release of the Labour Court, which is quite concise, is already worth noting. First of all, it should be noted that it does not contain any positive or negative statement on whether the parties to the works agreement can bindingly regulate the performance of corona tests as a prerequisite for access to the workplace. Rather, the press release does not address the injunction claim.

Nevertheless, it cannot be denied that in interim proceedings the grounds for injunction and the claim for injunction are related in such a way that the more serious and obvious the threatened or existing infringement is, the lower the requirements for the grounds for injunction are. In the case of the employment claim, which is after all relevant as an outflow of the general right of personality, this is irretrievably thwarted with every day that the employee is not employed. On the other hand, the order of temporary employment leads to the anticipation of the main issue to the detriment of the employer. In view of this, the courts of appeal have not arrived at a uniform assessment of how strict the requirements for establishing the prima facie case for the injunction must be. The Hessian Regional Labor Court, to whose jurisdiction the Offenbach am Main Labor Court belongs, does not place high demands on the grounds for the injunction, but consistently takes the view that the employee's right to employment must only be withdrawn if this is opposed by overriding interests of the employer that require protection (see only LAG Hessen, judgment of August 192002 - 16 SaGa 1118, BeckRS 2002, 30451016). 

This applies all the more in the present case because the employee was apparently in an employment relationship that had not been terminated, so that in principle there should have been no doubts about his entitlement to employment. The fact that the Labor Court was nevertheless unable to identify any grounds for an order permits the cautious conclusion that the Labor Court at least did not see any obvious and serious infringement of the employer's rights in the order for a PCR test, which was allegedly stipulated in the works agreement. 

Outlook

The employee has the right of appeal against the decision of the Offenbach am Main Labor Court. It is therefore to be expected that the Hessian Regional Labor Court will also have to deal in the near future with the question of whether employers may make the employment of their employees dependent on them undergoing a corona test. This decision will probably be eagerly awaited by both employers and employees.