Dear Employee, Unfortunately I Do Not Have a Workplace for You Today
With this headline I am of course not credible when I claim that I do not follow "GNTM" (Germany's next top model). But I do know the show, roughly the format and - from wherever - Heidi Klum's saying when a candidate doesn't reach the next round "I'm afraid I don't have a picture for you today". The same thing that happened to Heidi Klum's "girlies" when they failed to make it to the next round also happened to an employee in the Offenbach area. He was refused entry to the factory premises by the employer because the worker refused to take a corona "PCR test". "Dear employee, without a PCR test I unfortunately do not have a workplace for you today".
Compulsory vaccination, compulsory vaccination at the workplace or indirect compulsory vaccination through access restrictions for non-vaccinated persons in restaurants, cinemas, events or even at the workplace is underway. There is (still) no legal regulation and we do not have a supreme court ruling (yet). As always, almost all conceivable and also impossible arguments are put forward. The Offenbach Labour Court made a decision on this in interim injunction proceedings on 4 February 2021 (4 Ga 1/21).
Obligation to take the corona test at the workplace
To prevent the infection of colleagues, customers or patients, various measures have been implemented in workplaces since the beginning of the corona pandemic. Regular hand disinfection, observance of physical distancing, considerable restriction of physical gatherings, wearing of protective masks are now legally and actually accepted. Taking the temperature at the entrance to the company premises is also considered permissible. When deciding whether such measures are permissible, the health protection of employees, customers, patients and residents as well as the protection of the public health system must be weighed against the personal rights and data protection rights of employees. It is currently disputed whether or not there should be compulsory vaccination, especially for certain occupational groups.
A milder remedy than compulsory vaccination is the presentation of a negative corona test. An employer refused to allow one of his employees to enter the factory premises because he refused to take a PCR test. The requirement of the PCR test for entry to the factory premises was provided for in a company agreement.
The employee refused, arguing that the test violated his right to self-determination and was not covered by the right to issue instructions or by the company agreement. In addition, the PCR test was disproportionate because it constituted an invasive intervention in his physical integrity. The employee tried to obtain the continuation of his work activity with the employer and thus access to the factory premises without a PCR test within the framework of summary proceedings.
Offenbach Labour Court of 4 February 2021 – 4 Ga 1/21
The summary proceedings initiated by the employee was unsuccessful. The Labour Court rejected the motion because, in the court's view, the urgency required for summary proceedings did not exist, or at least could not be substantiated by the employee. In weighing the employee's access to the factory premises without a PCR test against the employee's non-employment, the court found the non-employment preferable because an urgent interest in employment was not recognisable. The question of remuneration is thus not settled. If the employee were held to be in the right in the main proceedings, the issue would only be one of employment. The claim for remuneration could persist.
The decision illustrates that issues related to the measures against the corona pandemic depend on many factors. The corona pandemic is certainly considered by the courts to be so serious that employees' rights of self-determination and personal rights are set back further than in the case of previous mass illnesses, such as influenza.
Warm (labour law) greetings from Munich!
Yours Dr Erik Schmid
Note: This blog has already been posted in the employment law blog of Erik Schmid at Rehm-Verlag (www.rehm-verlag.de).