Liability risk of employers in case of violation of Corona occupational health and safety regulations

LAG München 14.02.2022 - 4 Sa 457/21

Facts

The starting point of the case was the return of vacation of the managing director of the defendant in August 2020 with cold symptoms. Despite these cold symptoms (the intensity of which was disputed between the parties), the managing director worked in the office and also attended external appointments. He took the plaintiff with him in the car to two of these external appointments. Neither of them wore a mask in the car. The car trips lasted twice half an hour and twice more than a quarter of an hour.

A few days later the managing director was tested positive for COVID-19. Due to the Corona regulations at the time, the Public Health Department ordered a quarantine against the plaintiff as a contact person. The precarious situation was that the plaintiff had to cancel her wedding with 99 guests planned within the quarantine period at short notice. In total, the damage for the cancelled wedding amounted to around EUR 5,000.00. The Munich Labor Court and the Munich Higher Labor Court awarded the plaintiff the damages claimed.

Decision of the Higher Labor Court Munich

The Higher Labor Court Munich (LAG) confirmed the decision oft he Labor Court and considered that the employer, through its managing director, had breached its duty of care towards the employee pursuant to Section 241 (2) of the German Civil Code (BGB). The managing director had violated the public-law occupational health and safety obligations of the SARS-CoV2 occupational health and safety standards. According to the SARS-CoV-2 occupational health and safety regulations in force at the time, safety distances of 1.5 m were to be maintained at the workplace and anyone with symptoms of disease should stay at home. The manager had not complied with this.

If the employer's managing director had not come to the office or had at least kept the necessary distance from the employee by driving separately, no quarantine order would have been issued against the employee. The Higher Labor Court Munich also rejected contributory negligence on the part of the plaintiff. The employer argued in the lawsuit that the plaintiff, precisely because she noticed symptoms of illness in the managing director, could have insisted on a separate trip. In the opinion of the Higher Labor Court Munich, this would have been tantamount to the plaintiff informing the managing director that he was not paying sufficient attention to his own state of health and was not reacting adequately to it. In the opinion of the Higher Labor Court Munich, this was not reasonable.

Conclusion

The decision makes it clear that operational hygiene concepts are very important and must also be implemented consistently in practice. Nevertheless, the present case is an individual case, because here the causality between breach of duty and damage could be well substantiated. The Labor Court Siegburh (3 Ca 1848/21) recently ruled that no claims for damages or compensation for pain and suffering exist if employees are alleged to have (perhaps) contracted the Corona virus during working hours. The plaintiff employee, a nurse in a nursing home, tested positive for the Corona and suffered a severe course after helping out in the food serving area and with the residents' meals without having received a mask from the employer beforehand. Here, the Labor Court Siegburg denied the causality between breach of duty and damage. It could not be established with certainty that the employee had contracted the disease at her workplace. The judgement is not yet legally binding. It remains to be seen whether the next higher instance will rule differently.