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Can employers ask employees for a negative COVID test to access the workplace? A first positive view from Germany

Written by
Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
Authors
Jan Philipp Brune
Kliemt.HR Lawyers
Germany
24.02.21
6
Can employers require a negative COVID-19 test for entry to the workplace? The Offenbach Labour Court recently had to deal with this question in summary proceedings and ruled in favour of the employer. This article explains.
What is at stake?

In times of gradually decreasing case numbers, many organisations are preparing for employees to return to on-site work. Under occupational health and safety law, in connection with the spread of the COVID-19, employers must take the necessary measures to prevent infections in the workplace and to break chains of infection (cf. no. 1 para. 2 of the SARS-CoV-2 Occupational Safety and Health Regulation). In the event of suspected cases, the employer is currently even obliged to ask the employee to leave the workplace immediately and, if necessary, to consult a doctor (section 4(2)11 of the SARS-CoV-2 Occupational Safety and Health Regulation).

In addition to the employer’s right to ask about an infection or contact with demonstrably infected individuals and travel in risk areas (as defined by the Robert Koch Institute), temperature monitoring before entering the workplace has been under discussion for some time. It is true that the employer’s right to direct employees (s106 of the Trade Ordinance; s611a of the Civil Code) is not sufficient alone to order an examination of the employee (without a reason). 

However, the Federal Labour Court has already clarified that the employer may order examinations under certain conditions. Although a legal basis is required for this, the employee may, in addition, be required to accept examinations based on collective agreements (a collective agreement or works agreement), the employment contract and even based on his or her general duty of loyalty. The employer can then formalise this existing obligation through its right to direct employees. According to a partial opinion which appears in specialised literature, temperature monitoring before entering the workplace is therefore considered permissible at least on an occasion-related basis (e.g. when there are already suspicious cases in the workplace) (cf. for example Fuhlrott, GWR 2020, 107).

The Offenburg Labour Court was (as far as can be seen) the first German labour court to decide on the question of whether the employer can go one step further and make access to the workplace dependent on a negative COVID-19 test (PCR test). The employer had concluded a works agreement to this effect. After an employee refused to take the PCR test provided for in the works agreement, the employer denied him access to the workplace. The employee argued that the instruction violated his right to self-determination and was not covered by the right to issue instructions or by the works agreement. He also argued the PCR test was disproportionate because it constituted an invasive interference with physical integrity. 

In view of their duty of care (s611a, s618, s241(2) of the German Civil Code (BGB) in conjunction with s3 et seq. of the German Labour Protection Act), employers are fundamentally obliged to protect (all) workers in the organisation from health risks. Therefore, especially in times of an ‘epidemic situation of national scope (cf. s5 of the German Infectious Diseases Protection Act), there may be a recognisable interest on the part of the employer in interrupting chains of infection in the workplace. On the other hand, employees have a so-calledgeneral right to employment, which is ultimately derived from the general right of personality (Art. 1 and 2 of the Basic Law (GG), cf. Federal Labour Court of 9 April 2014 – 10 AZR 637/13). This must be particularly observed in relation to employees who are dependent on access to the premises to fulfil their work duties.

However, at least in organisations where there are already suspected cases, those which are located in a region with a particularly high seven-day incidence or where workers have returned from a ‘risk area, it can certainly be argued that in individual cases the ‘necessary occupational health and safety measures within the meaning of s3(1) of the German Occupational Health and Safety Act can also include PCR testing for COVID-19 (this is already provided for in Section 4 (2) of the Baden-Württemberg Slaughterhouses and Meat Processing Corona Ordinance). This is because, in addition to their duty of loyalty (s241(2) of the German Civil Code), employees also have a basic duty under current occupational health and safety law to ensure the safety and health of individuals affected by their actions at work (section 15 (1) (2) of the German Occupational Health and Safety Act). 

A question to be distinguished from this is, as is so often the case, employee data protection. Since PCR tests involve the collection and processing of particularly protected health data within the meaning of Article 9(1)(1) of the GDPR, this also raises the question of the employer’s entitlement to demand proof of noninfection as a kind of ‘admission ticket to the workplace. This is because health data is exceptionally only available for data processing if the high requirements (according to Art. 9 para. 2 lit. b or lit. I GDPR and the German Infection Protection Act or s26 para. 3 of the German Federal Data Protection Act) are fulfilled.

As far as can be seen, labour court decisions are still pending. For temperature monitoring which is sometimes considered ‘unsuitable for detecting acute infection, it is argued (within narrow limits) that this may be necessary to assess fitness for work and therefore permissible under s26(3) of the German Federal Data Protection Act (on electronic temperature recording please note the resolution of the Conference of Independent Data Protection Supervisory Authorities of 10 September 2020 and the opinion of the Hamburg Commissioner for Data Protection and Information Security of 27 November 2020, respectively). These principles appear to be quite transferable to PCR tests, especially since their suitability for providing evidence of acute infection is likely to be significantly higher.

What does the decision say?

The Fourth Chamber of the Offenbach Labour Court rejected the employee’s urgent application to continue his work. The press release of 4 February 2021, (the full judgement is not yet available), only states that the application was rejected inter alia because the employee had not proven an immediate decision was urgently required. In any case, the panel could not see any special, urgent interest in employment. On the other hand, it is not clear whether the Offenbach Labour Court considered the ordering of PCR tests by works agreement permissible. 

Why is the decision (nevertheless) important for practice?

Although the reasons for the decision are only given in a very cursory manner in the press release, it deserves attention. According to established case law, the Hessian State Labour Court does not set too high hurdles when examining the urgency of an employment claim, but rather assumes that this so-called ground for injunction follows from the thwarting of the employment claim per se; a special situation of urgency is then not required (cf. Hessian State Labour Court of 28 June 2010, 16 SaGa 811/10). This applies all the more since the constitutionally protected employment claim basically arises on every working day. Since the employee has the right of appeal, the higher courts will probably also have to deal with this quite explosive issue in the near future. 

Even as case numbers are declining, the debate about compulsory vaccination and proof of vaccination remains in full swing and is sometimes controversial. A less drastic, but more suitable instrument for detecting acute infections compared to temperature checks can be the performance of PCR tests (in specific situations) by the company doctor or appropriately trained specialist staff. For organisations currently preparing for the return of their employees to the workplace, it is important to be attentive and prepared here. For this purpose, it may be advisable to conclude company agreements to cover this