BAG: Corona testing obligation for employees lawful

The employee was employed as a flautist at the Bavarian State Opera. The employer’s hygiene concept included protective measures such as the reconstruction of the stage area and the redesign of the entrances and exits. This was followed by a requirement that all employees must submit a negative PCR test when they start work in the 2020/21 season. To this end, a testing strategy was developed with scientific experts. The employer offered free PCR tests for this purpose. Alternatively, employees could submit PCR test results from a provider of their own choice. Otherwise, employees were prohibited from rehearsing or participating in performances. The plaintiff refused to submit to PCR testing, whereupon the employer stopped paying her salary. After two months, the employee submitted test results from then on, whereupon the employer also immediately resumed salary payments. The employee demanded payment for the interim period, nevertheless. In the alternative, she demanded compensation for periods of home practice. She also requested to be deployed without any requirement to conduct tests to detect SARS-CoV-2. The employer challenged this completely.

The Munich Industrial Tribunal in the first instance and the Munich Court of Appeal in the second instance dismissed the employee’s claim. This was justified in the first instance based on the employer’s instruction right (§ 106 GewO) and his duty of care towards his employees regarding health and infection protection (§ 618 BGB in conjunction with § 3 (1) ArbSchG). The Court of Appeal agreed and emphasized the specific working conditions of the flautist, referring on the one hand to the non-existing possibility to wear a mouth-nose covering and on the other hand to the particularities of droplet and aerosol distribution when playing the flute. Ultimately, the employer’s request was also covered by the collective agreement for musicians in cultural orchestras (TVK). The weighing of the disproportionate interference with the physical integrity of the employee was in favour of the other employees who were to be protected from health risks.

The BAG agreed and dismissed the employee’s claim. The employer is obliged to organize the work performance in such a way that the employees are protected against hazards to life and health as far as the nature of the work performance permits, as the BAG pointed out. The employer’s duty of care under Section 618 (1) of the German Civil Code (BGB) for the safety and life of employees is specified by occupational health and safety standards under public law (ArbSchG). The orders issued by the employer were based on the hygiene and health concept submitted and were in accordance with equitable discretion within the meaning of § 106 GewO. In this respect, the minimal encroachment on physical integrity was to be considered proportionate. The fundamental right to informational self-determination did not make the test order inadmissible.

On the part of the employee, there was a lack of willingness to perform because she refused the PCR tests. The employer was therefore entitled to rely on the employee’s inability to perform (§ 297 BGB). Accordingly, there was no entitlement of salary for the period of non-compliance with the prescribed tests.

Salary for domestic practice is also out of the question, as such remuneration is only owed insofar as it relates to the services governed by the collective agreement – i.e. rehearsals and performances. However, the employee had not participated during the period in question. The BAG also rejected the request for being deployed without any obligation to perform tests. This follows from the fact that the rejected payment requests already show that effective test requests are possible.

Overall, the BAG’s decision is to be welcomed, particularly from the employer’s point of view. The decision shows that the employer can order measures to protect health in the workplace under certain conditions. This is particularly true in the case of collective bargaining agreements, such as the collective bargaining agreement for musicians in cultural orchestras. Comparable obligations also exist in other collective bargaining agreements (e.g. Section 3 (4) of the cba for the public services “TVöD”), from which it follows that the ruling will be of far-reaching significance. But even without a collective bargaining agreement, employers have the option of obligating their employees to take certain health protection measures. Such measures can be based on the employer’s instruction right if certain conditions are met. This could become relevant again in next autumn.

If you have any further questions, please do not hesitate to contact our experts in labour law.