To test or not to test? The Corona test in the workplace according to the SARS-CoV-2 Occupational Health and Safety Regulation

The COVID-19 pandemic continues to have Germany firmly in its grip. In order to counter the continuing rise in the number of cases, the Federal Ministry of Labor and Social Affairs introduced a general obligation for employers in Section 5 (1) of the SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV) for the first time in an ordinance dated April 14, 2021, to entitle employees who do not work exclusively at home to undergo a Corona rapid test at least once per calendar week. In the case of particularly vulnerable groups of employees - e.g. in the case of body-related services - Section 5 (2) Corona-ArbSchV provided for at least two test offers per week. However, this differentiation was only of short duration. With the entry into force of the Third Ordinance Amending the SARS-CoV-2 Occupational Health and Safety Ordinance of April 21, 2021, the number of test offers was increased to two per calendar week for all employees who at least sometimes do not work from home. 

For the employer, this means that he must make corresponding test offers at his own expense and also document this. The evidence of the procurement of tests in accordance with Section 5 (1) Corona-ArbSchV or the likewise agreements with third parties on the testing of employees must be retained by the employer until June 30, 2021 (Section 5 (2) Corona-ArbSchV). 

However, the employee is not obliged to take up this test offer. The question already addressed in previous updates, whether and under which conditions the employer can order the employee to undergo a Corona test, is thus not clarified by the current Corona-ArbSchV. At most, the fact that the Corona-ArbSchV provides for a general obligation for employers to enable testing but, in contrast to Section 28b (7) of the Infection Protection Act, which regulates the obligation to work from home in the context of the so-called federal emergency brake, does not stipulate an obligation for the employee to accept the test offer, could be seen as confirmation of the view that the employer requires a special justification if he wishes to introduce a testing obligation for individual or all employees or for certain groups of employees. It must therefore be examined whether the instruction to carry out a Corona test is in accordance with equitable discretion (Section 106 GewO). This requires that the interests of the employer are weighed against the interests of the employee and that, as a result, the employer's interest prevails (Update Employment Law February 2021). Whether this is the case remains to be examined on a case-by-case basis.