Workplace Testing for Coronavirus

Federal Labour Court (BAG), June 01, 2022 – 5 AZR 28/22

Employers may require staff to test for coronavirus. Employees that refuse to comply with the respective instruction and that are barred from entering the grounds as a consequence are not entitled to remuneration. 

Facts

The parties were in disagreement as to whether the plaintiff had to participate her employer’s coronavirus testing program and whether the plaintiff was entitled to remuneration. 

The plaintiff was a flautist at the Bavarian State Opera. At the beginning of the 2020/2021 season, the defendant, the Free State of Bavaria, implemented a workplace hygiene concept including a testing strategy, which required employees to regularly test for coronavirus (PCR-testing). Unless tested, employees would not be able to participate in performances and rehearsals. 

The plaintiff refused the PCR-testing. She considered testing to be inaccurate and – as mass-testing – a violation of her physical integrity. The defendant thereupon stopped paying the plaintiff her salary. 

The plaintiff then brought an action, asserting her right to remuneration for failure of accepting her work performance (Annahmeverzug), alternatively remuneration for the periods of practicing at home as well as continued employment without being required to test for coronavirus. 

Decision of the Federal Labour Court

After the claim had already been dismissed in the lower courts, the plaintiff’s revision in front of the Federal Labour Court, that had explicitly been admitted, remained unsuccessful. 

Employers may lawfully require testing for coronavirus on the grounds of a company hygiene concept for the purpose of implementing occupational health and safety obligations. 

Section 618 (1) of the German Civil Code (BGB) imposes an obligation on employers to arrange work performance under their instructions in such a way that employees are protected against life and health hazards insofar as the nature of the work permits. The scope of these obligations is specified by the stipulations of the Occupational Health and Safety Act (Arbeitsschutzgesetz). The practical implementation is achieved through instructions given by the employer regarding the order and conduct of the employees in the company (Section 106 of the German Industrial Code, Gewerbeordnung). These instructions must meet the standard of “equitable discretion” (Section 315 of the German Civil Code), which is in itself defined by the requirements of the Occupational Health and Safety Act. 

Accordingly, instructing employees to test for COVID in line with the company’s hygiene concept had not been unlawful. The instruction – based on a science-based testing concept –, in order to maintain operation of the opera and to protect the employees’ health, was within the scope of equitable discretion. Interference with the physical integrity of the employees (Article 2 (2) of the German Basic Law, Grundgesetz) was minimal and proportionate. The basic law of informational self-determination (Art. 2 (1) in combination with Art. 1 (1) of the German Basic Law) did not stand in the way, especially since at the time a positive test result would have had to be disclosed to the company anyways because of reporting obligations under infection control law. Neither did the fact that the tests might be susceptible to errors affect their general suitability for workplace hygiene concepts. The plaintiff had therefore not been entitled to remuneration for the employer’s failure to accept her work because of her refusal to comply with her employer’s – lawful – instructions, given the lack of her will to actually perform, see Section 297 of the German Civil Code. Nor was she entitled to remuneration for practicing at home, as the defendant did not owe remuneration for those hours. Lastly, the global claim of continued employment without testing was also unfounded as testing instructions can be perfectly valid in certain cases, as seen above. 

In Praxi

The Federal Labour Court has clearly stated, as far as can be deducted from the currently available press release, that employers may require testing for coronavirus on the grounds of a workplace hygiene concept, in order to implement their obligations under occupational health and safety law. On the other hand, however, employers will have to examine based on the circumstances of the individual case at hand whether an instruction to test is in fact proportionate. Relevant factors to consider are the current infection rates, the vaccination rate and the general risk of infection. As a general rule: The instruction to test is valid only if there are adequate grounds, for example the current status of infections, to justify a conflict with the employee’s rights and if there are no means milder than the testing obligation but equally as effective. Finally, it should be noted that the refusal to participate in the employer’s testing strategy does not only result in the loss of remuneration but it may constitute relevant grounds for warnings and dismissal.