Federal Labour Court holds COVID test requirement in the workplace is valid

Judgment of the Federal Labour Court of 1 June 2022 in Case No. 5 AZR 28/22

The Federal Labour Court (Bundesarbeitsgericht, BAG) handed down its first judgment on workplace hygiene concepts and provided legal certainty for employers when adopting workplace regulations to protect against Corona risks. Employers may impose measures which go beyond the statutory rules and recommendations applicable at the time. The BAG grants employers a considerable margin of discretion: the protective measures adopted may not counteract the pursued objective.

Facts of the case

In August 2020, after taking various structural and organisational measures to protect employees against infection with the COVID-19 virus, such as increasing the size of the orchestra pit, the Bayerische Staatsoper (Bavarian State Opera House) ordered all employees to present a negative PCR test at the start of the season. The Staatsoper’s hygiene concept, which was based on expert advice, established this obligation. This concept also required employees to undergo subsequent tests, although the testing frequency depended on the group to which the specific employee belonged (groups 1 to 4, depending on the risk of infection in the workplace). The employees could choose whether to take part in the tests organised by the Staatsoper or whether to be tested elsewhere and bring the result of the test with them.

When an employee refused to take a PCR test at the start of the season, she was subsequently not given any work. The employer also cancelled the payment of her salary. The musician brought a claim for the payment of her salary based on the delay in acceptance and sought continued employment without any obligation to take any tests.

The judgment

Like the lower courts, the BAG rejected the appeal on all counts. If employees refuse to present the results of lawfully ordered Corona tests, they are not “willing to perform” their work. The employee is therefore not entitled to payment of their salary for the period in which they did not work. According to the BAG, employers are not only justified but required to regulate the working conditions to protect employees from risks and threats to life and health. The occupational hygiene concept can include regular testing of employees, providing all other possible suitable protective measures – such as regular airing, mask wearing, etc. – have already been taken. The orders of the Staatsoper in this case were therefore also lawful. According to the BAG, the Staatsoper had not exceeded the scope of its discretion. This is because, in the case of an order to take a PCR test, the employer’s intrusion on the bodily autonomy of the employee is minimal and the PCR test promoted the aim pursued by the Staatsoper – to protect against Corona outbreaks in the workplace and break through the infection chain. The basic right to self-determination over personal data (data privacy) does not make the order unlawful. If an employer may order employees to take tests as part of the employee protection concept, the tests will also be lawful under data protection law.
The BAG rejected the claim for work without the presentation of a Corona test because the claim was too general (so-called global claim). The flautist’s claim for further work without testing also covered situations in which she was otherwise required – e.g., under law – to present a Corona test.

Consequences for practice

This judgment of the BAG provides clarity and establishes the test that courts will apply when assessing company employee protection concepts. In this respect, the BAG approves a considerable scope of discretion for employers. In particular, an order for all employees to take Corona tests can be permissible. However, this requires a well-balanced hygiene concept and other protective measures, e.g., the wearing of a mask, etc. to be taken. If these measures do not offer adequate protection, employees can be obligated to take Corona tests. At the core of this decision is the benchmark for assessment: the Court followed the recent jurisprudence of the Federal Constitutional Court (Bundesverfassungsgericht) and determined that only those protective measures that are not suitable for achieving the employer’s aims, do not promote those aims or even oppose those aims will be unlawful. This shows that the Court does not impose a strict standard but protects the decisions of employers. In addition, the BAG confirms that employers may also impose measures which go beyond the statutory rules and recommendations.

Practical tips

Although the legal review of such worker protection concepts is limited, companies should still develop them with care and document the considerations and decision-making process. This is particularly true when Corona tests are to be ordered. These can be part of the hygiene concept even if they are not required under statute. Such measures do, however, need grounds. The aim must therefore be clearly defined, and the tests must be necessary, suitable and appropriate in accordance with the above decision. In this case, the aim was to detect and break infection chains. In addition, the implementation of the testing concept must ensure sufficient protection of health data.

Christina Kamppeter, Dr Olga Morasch

Note: Our firm represented the Bayrische Staatsoper in this case. Still, we have tried to present the facts and judgment as objectively as possible.