In principle, employers have a duty of care towards their employees, in particular during the Corona pandemic. The employer has to minimize the risk of infection at the workplace as much as possible. In order to do so, he or she must also take measures to ensure compliance with hygiene and distance regulations.
When it comes to more far-reaching measures, it is not as clear how far the employer may give instructions. The employees’ right to privacy is in conflict with the authority to give instructions. According to the current legal situation, it is clear that there is no obligation to be vaccinated against the Corona virusneither in the employment relationship. However, the employer can demand that employees cover mouth and nose under certain circumstances. This is shown by a ruling of the Siegburg Labor Court in interim legal protection that is not final yet.
Plaintiff Refuses to Wear Face Mask
In the underlying case, the plaintiff was employed as an administrative official in a townhall. In the course of the Corona pandemic, the municipality had ordered in May 2020 that both employees and visitors must cover mouth and nose in the town hall.
The plaintiff submitted a medical certificate which released him from the obligation to wear a mask without stating any reasons. The employer instructed him to then wear a face shield when he enters the townhall and while he stays in the corridors and in the common rooms. The plaintiff refused this as well, and again submitted a medical certificate that exempted him from this obligation as well, without giving any reasons. The municipal administration did not see any possibility of further employing the employee in the townhall without mouth nose cover.
Health Protection Takes Priority
The plaintiff opposed this. With a claim for an interim injunction, the plaintiff wanted to obtain in an urgent procedure his work in the townhall without face mask/shield or, alternatively, working from home. Without success.
The Siegburg Labor Court denied the claims in a judgment dated December 16, 2020. According to the court, the health and infection protection of all employees and visitors in the townhall outweighed the plaintiff’s interest in employment without face mask or visors.
Medical Certificate Must State Concrete Reasons
The court also raised doubts about the validity of the certificates. The court agreed with the argumentation of the Higher Administrative Court of Münster regarding the mandatory wearing of masks at schools. According to this, a certificate must contain specific and verifiable information as to why the wearing of a mask cannot be asked. Otherwise, the plaintiff would be able to gain a legal advantage by presenting the medical certificate. The labor court also denied a claim to work from home.
The plaintiff can still appeal against the judgment.
During the Corona pandemic, employers are permitted to impose requirements on their employees, for example regarding face masks, especially in areas open to the public, so that colleagues and customers are protected. If the employee does not comply without verifiable medical reasons, he or she may be suspended from work (without payment) or, in extreme cases, even dismissed on grounds of personal capability. In this context, a simple medical certificate that does not state any reasons is not sufficient for exemption from the obligation to wear masks.
