BLOG -


An order to wear a surgical face mask as a safeguard against the Coronavirus does not entitle the wearer to a hardship supplement under the collective wage agreement for industrial cleaners

Judgment of the Federal Labour Court of 20 July 2022 in Case No. 10 AZR 41/22

An employer’s order for employees to wear medical face masks (surgical masks) as a safeguard against the Coronavirus does not fulfil the requirements for a hardship supplement under § 10 No. 1.2 of the Framework Collective Wage Agreement for commercial workers in the industrial cleaning industry.

Facts of the case

The worker is employed as a cleaner. The Collective Wage Agreement for the Industrial Cleaning Industry applies to his employment relationship based on the order declaring the Agreement generally binding. Between August 2020 and May 2021, he wore a medical face mask while carrying out his cleaning duties as instructed by his employer. The employer adopted the measures to safeguard against the Coronavirus. The employee demanded he be paid a hardship supplement equivalent to 10% of his hourly wage for wearing the mask based on § 10 No. 1.2 of the Framework Agreement. He claimed that wearing a medical face mask while working constituted a hardship that should be compensated by the hardship supplement. A medical face mask should be considered part of his personal safety equipment because it also reduces the risk that the wearer will become infected. The lower courts dismissed the claim.

The judgment

The Federal Labour Court (Bundesarbeitsgericht, BAG) shared the view of the lower courts. It clarified that a medical face mask is not a respiratory mask within the meaning of § 10 No. 1.2 of the Collective Wage Agreement. The collective provisions relate to occupational health and safety regulations. Accordingly, the term respiratory mask includes only those masks which are personal protective equipment and are primarily intended to protect the individual wearer. This does not apply to medical face masks, which are designed to protect others, not the wearer, and do not meet the requirements under the occupational health and safety provisions for personal protective equipment. The employee is therefore not entitled to a hardship supplement under the provisions of the Collective Agreement for wearing a medical face mask.
The judgment of the BAG is correct and logical. In line with the judgments of the lower courts in this case and other judgments at first instance, the supplement should be denied. In its opinion of 24 April 2020, the Trade Association for Industrial Cleaning (one of the parties to the Collective Agreement) also clarified that only FFP masks of protection classes 1 – 3 are respiratory masks within the meaning of the Collective Agreement; everyday masks and surgical masks do not fall within this definition.

The wording of the provisions of the Collective Agreement, but also the sense and purpose of the rule target the personal protection of workers. In addition, the hardship supplement only applies – as is clear from the broader context of the standard – when a certain intensity is exceeded. This is not the case when wearing a simple surgical mask.

Consequences for practice

The judgment is relevant to more than just the Collective Wage Agreement for the Industrial Cleaning Industry. The provision in question concerns general occupational health and safety provisions. Accordingly, the BAG clarified that respiratory masks are only those masks that are designed for the personal protection of the wearer and are part of the wearer’s personal protection equipment. Medical face masks are designed to primarily protect others and not the wearer. This argument can be applied in other cases, and not just those based on the Collective Wage Agreement for Industrial Cleaning Services.

Anne Dziuba

TAGS

Arbeitsrecht BAG Corona OP-Maske Schutzmasken