LAG Cologne: No right to claim continued employment in the case of a medical certificate that the employee is unable to wear a mask
Judgment of the Regional Labour Court in Cologne 12 April 2021 in Case No. 2 SaGa 1/21
An employer may refuse to continue to employ an employee where– as documented by a medical certificate – the employee is unable to wear a face mask. The employee is unfit for work in this case.
Facts of the case
The Defendant employed the employee as an administrative clerk at the municipal town hall. In a letter of 6 May 2020, the Municipality issued an order requiring all visitors and employees to wear face masks on the town hall premises. The employee presented two medical certificates which released him from the obligation to a wear face mask of any kind. The municipality did not want the employee to work at the town hall if he was not wearing a face mask. In an application for an injunction, the employee sought an order allowing him to continue employment at the town hall without having to wear a face mask; alternatively, he wanted to be allowed to work from home. The Labour Court rejected the employee’s application. The employee appealed this decision.
The appeal was unsuccessful. According to the Regional Labour Court, the employee had no right to force the municipality to tolerate him working in the town hall without wearing a cover over his mouth and nose. Under the Ordinance on the Protection against the Risk of Infection with the Coronavirus of the Land of NRW (Coronaschutzverordnung) applicable since 7 April 2021, a face mask requirement applied to the town hall of the municipality. The SARS-CoV-2 Worker Protection Regulation (SARS-CoV-2-Arbeitsschutzverordnung) of 21 January 2021 also imposed an obligation on employees to order the compulsory wearing of face masks to provide the best possible protection for employees. In addition, according to the Regional Labour Court, this order was covered by the right to issue directives. Wearing an FFP-2 mask serves to protect employees and visitors to the town hall as well as the employee himself from infection. If the employee has a medical certificate that he is not able to wear a mask, the employee is unfit for work and therefore not employable.
In this case, the Regional Labour Court also held that the employee did not have a right to be allocated to another position that he could still perform, such as one where he could work from home. At least some of the employee’s tasks had to be performed at the town hall. Performing some of his work from home would not fully counteract the fact that he was unfit to work so that a home office solution could not be offered at that time.
Consequences for practice
The obligation to wear a mask at work (by law, regulation, or order) will continue to raise questions. In principle, it is possible to release an employee from the obligation to wear a mask in a specific case. However, this is insufficient to establish a right of an employee to continued employment at the workplace without wearing a face mask. The judgment makes it clear that the employer has a significant duty of care towards other employees, which, in the case of doubt, takes precedence over the individual’s right to employment. In addition, it is important to bear in mind that employees – depending on the specific case – could be considered unfit for work if they have a medical certificate which exempts them from complying with the order to wear a mask in the workplace and are also unable to perform their duties from home, with the consequence that they have a right to continue to receive their salary for a period of six weeks. If the requirement to wear a face mask in the workplace is likely to remain for the foreseeable future and there is no medical treatment or therapy that is likely to make it possible for the employee to wear a mask, the issue of a notice of termination of employment on personal grounds could even be considered in the specific case.
Where an employee presents a medical certificate exempting them from wearing a face mask, the employer should first assess the specific content of the medical certificate and what it actually covers. If the certificate plausibly shows that the face mask cannot be worn for medical reasons, the employer should consider whether the employee in question could perform his or her duties from home. Where this is not the case, it might also be possible to make some modifications within the workplace to safeguard against infection. However, the employer is not required to create a new position for the employee. If an employee refuses to wear a face mask in the workplace without a (sufficiently reasoned) medical certificate, it is possible to place the employee on leave without pay. In addition, a written warning can be issued and, where the employee continually refuses to wear a face mask, termination of the employment relationship can even be considered.