As a general rule, employers owe a duty of care towards their employees. This is applies all the more during the coronavirus pandemic. The risk of infection in the workplace has to be kept as low as possible. In order to do this, measures must be taken, for example, to comply with the hygiene and social distancing rules. The occupational health and safety regulations regarding SARS-CoV-2 dated January 21, 2021 on measures to reduce contact in the workplace and compulsory face coverings applies.
Rights to Issue Work Instructions Compete with Personality Rights
When it comes to further-reaching measures, the company’s right to issue work instructions come into conflict with the employees’ personality rights. For example, an employer cannot require employees to be vaccinated. However, the employer can demand that employees face coverings at work, as demonstrated by a ruling of Labor Court Siegburg dated December 16, 2020 (Ref.: 4 Ga 18/20).
Employer Requires Coronavirus Test
Nevertheless, a coronavirus test constitutes a greater infringement of the employees’ personal rights than an obligation to wear a mask. Despite this, a company in the German state of Hesse required its employees to take the so-called PCR test before entering the factory premises. A corresponding works agreement regarding the tests was already in place. When an employee refused to take the coronavirus test, he was refused entry to the workplace.
In an application for interim relief, the employee demanded access to the workplace. He claimed that the request to carry out the test violated his self-determination rights. He claimed the request was neither covered by the employer’s rights to issue work instructions nor by the works agreement. The test constituted a disproportionate, invasive interference with his physical integrity rights.
Labor Court Dismisses Application for Interim Relief
The Labor Court Offenbach dismissed the employee’s application for interim relief. It did not address the question whether the employer was permitted to require a coronavirus test. It dismissed the application solely on the grounds that the employee had not proven the need for urgency. The employee can still appeal against the labor court’s decision.
When it comes to workplace coronavirus protection measures, it is important that they are proportionate. In this regard, health and protection from infection regulations may outweigh the interests of the individual. In such a case, exclusion from the workplace is also legitimate. Employees should think very carefully before refusing a coronavirus test.