Germany: Covid testing and vaccination requirements at work?

With the approval of Covid self-tests, as well as the increasing availability of vaccines in the future, public debate about potential testing and vaccination requirements in employment relationships is increasing.

First German Labour Court decision on mandatory testing

Recently, the Offenbach Labour Court dealt with a case in which an employer had ordered employees to take a Covid test. The employer had refused an employee access to the factory premises after the employee had declined to take a PCR test. According to the employer, a corresponding obligation on the part of the employee arose from a works agreement. The employee, on the other hand, felt that his right to self-determination had been violated because the order was not covered either by the right to issue instructions or by the works agreement. He claimed that the PCR test was disproportionate, as it constituted an invasive intervention in his physical integrity. However, the employee's urgent application for continuation of his employment was rejected, among other things, due to the lack of urgency for an immediate decision. A special urgent interest in employment, which is required for a decision in summary proceedings, was not recognizable to the judges.

Unfortunately, the press release of the Labour Court does not indicate whether the Chamber assumes that the requirement of PCR tests through a works agreement is permissible in principle. In this respect, a possible decision of the next higher instance or the decision in the main case remains to be awaited. However, it can be assumed that the relevant issues will repeatedly occupy the Labour Courts in the coming months.

No general obligation to undergo Covid testing

To answer whether employers can effectively oblige their employees to perform Covid tests, it is necessary to evaluate the conflicting interests in each individual case: On the part of the employer, his interest in the functionality of his business and his duty to protect his workforce must be taken into account. On the other hand, the employee's interest in the protection of his general personal rights and his right to physical integrity must be considered. In the assessment, it must also be examined whether milder means, such as consistent compliance with the distance and hygiene rules or further occupational health and safety measures specified by the SARS-CoV-2 occupational health and safety standard, are not equally suitable for achieving the objective pursued by a testing obligation - namely the health protection of the workforce and the maintenance of business activities.

Without specific indications of an infection of the employee and thus of a risk emanating from the employee, the employer will in principle not be able to order the performance of a Covid test as a result. Exceptions exist for activities that involve a high risk of infection that cannot be sufficiently reduced by hygiene concepts. In particular, this applies to activities with close contact to persons, such as nursing activities and services close to the body, such as massage, cosmetic or hairdressing services.

In addition, infection protection ordinances of the federal states oblige employers of certain occupational groups to perform regular Covid tests on them, cf. e.g. § 1b para. 2 Corona-EinrichtungsschutzVO Hessen. In these cases, the instruction without a specific cause will also be effective.

However, if the employee shows symptoms of a Covid infection and he/she cannot work from home, the situation must be assessed differently: If the employer has reason to assume that the employee poses a health risk to other employees and third parties, the interests in dispute on his behalf prevail and justify the interference with the physical integrity of the employee. With regard to alcohol and drug tests to determine the health suitability of the employee, the performance of occasion-related minor interference with the physical integrity is accepted by case law (cf. judgment of the Federal Labour Court (BAG), 12 August 1999 - 2 AZR 55/99). In light of the danger to the health of the workforce and to the functioning of the company in the pandemic situation, this should in principle be transferable.

Consequences of refusal

If an employee refuses to comply with a permissible and therefore effective order to perform a Covid test, he risks losing his right to continued payment of wages. In this case, he violates a lawful instruction of the employer and does not offer his work performance properly. If the employer then refuses access to the workplace, he is not in breach of his obligations. Thus, he is not obliged to remunerate the lost working time. Measures under the employment contract such as warnings or, under certain circumstances, even termination of the employment relationship in the event of persistent refusal by an employee who cannot be deployed without a test are also conceivable.

Co-determination rights

Before collective Covid testing is carried out, the co-determination rights of an existing works council in the area of occupational health and safety (Sections 80 (1) No. 1, No. 9, 89 BetrVG) must be observed. In this context, information rights and mandatory co-determination rights of the works council exist, since both questions of the order of the company and occupational health and safety are affected (Section 87 (1) No. 1 and No. 7 BetrVG).

Specifics of vaccinations

So far, a legal obligation for Covid vaccinations does not exist. The German Act on the Protection against Infection (Infektionsschutzgesetz) does provide for the possibility of ordering compulsory vaccination for threatened sections of the population if a transmissible disease with a clinically severe course occurs and its epidemic spread is to be expected. A corresponding obligation currently exists only indirectly with regard to measles vaccination for employees in care, nursing or medical facilities. According to the German government, the introduction of mandatory Covid vaccination is not planned.

Thus, the respective interests of the parties involved must be assessed in this respect as well. In contrast to testing, protective vaccinations do not serve to avert danger, but are purely preventive in nature. This must be assumed in any case as long as it has not been conclusively clarified whether vaccinated persons can continue to transmit the coronavirus. The interference with the physical integrity in the case of a vaccination, in which substances are injected into the body that can affect metabolic processes and trigger allergic reactions, could be considered particularly serious. Making vaccination an effective prerequisite for the activity can therefore at most be considered where the risk of transmission is particularly high and the consequences of transmission are particularly serious. Therefore, the nursing and medical sector as well as the care of high-risk groups are to be considered.

In light of this circumstance, there is an ongoing discussion as to whether employers can provide incentives for vaccinations. In one of our previous insights, Kerstin Helmerich provides more information on this topic.