Few people like wearing face masks, but some people dislike them so much that they refuse to wear one altogether. But how can employers deal with these ‘mask refusers’? In individual cases, a refusal to wear a mask can justify extraordinary dismissal. This is the opinion of the Cologne Labour Court in a judgement of 17 June 2021 (Ref: 12 Ca 450/21), which is not yet legally binding.
The plaintiff was employed as a service technician. The defendant employer issued an instruction to all service technicians in the field to wear mouth/nose coverings when working with customers. The plaintiff was required to carry out an assignment with a customer and the customer insisted he wear a mouth-nose covering.
In early December 2020, the plaintiff refused to carry out the assignment. Subsequently, the plaintiff submitted a medical certificate issued on blank paper and dated June 2020 entitled ‘Snot rag exemption’. It was certified that:
‘for medical reasons, it is unreasonable for the plaintiff to wear a non-medical everyday mask or comparable oral-nasal covering as defined in the SARS-CoV-2 Containment Measures Regulation.’
The defendant employer informed the plaintiff that it did not recognise the certificate for lack of concrete, comprehensible information. It issued an instruction to the plaintiff to wear a mouth-nose covering and agreed to pay for the costs of the medical mouth-nose protection.
The plaintiff continued to refuse the order. This was followed by a warning from his employer. The plaintiff insisted that he would only carry out the assignment if he did not have to wear mouth-nose protection.
The defendant employer finally terminated the employment relationship using an extraordinary dismissal, or alternatively an ordinary dismissal.
The Cologne Labour Court dismissed the employee’s action for unfair dismissal. The extraordinary dismissal was legally effective. A person who stubbornly refuses to wear a mouth-nose protection required by a customer and instructed to be worn by the employer while performing his duties at the customer’s premises repeatedly violates his duties under his employment contract.
The repeated refusal to work was not justified by the certificate submitted by the employee. The certificate was not up to date and gave a vague diagnosis; it was not meaningful and there were doubts about the seriousness of the employee’s alleged medical contra-indication. After all, the employee himself described the mouth-nose protection as a ‘snot rag’. In addition, he had not had himself examined by the company doctor.
It is true that an employer cannot oblige an employee to be examined. However, if the employee refuses an offer of medical examination, this may, according to the Cologne Labour Court, give rise to further doubts about the seriousness of a certificate and be to the employee’s detriment.
The Cologne Labour Court makes a first, important and welcome decision in dealing with ‘mask refusers’. It confirms the pre-existing tendency in case law to place higher requirements on a certified exemption from the mask obligation. As long as the pandemic continues, employers can instructions to employees to wear masks if a risk assessment shows that protection is not guaranteed by other technical or organisational measures.
The basis for this instruction is the employer’s duty of care according to s214 of the German Civil Code as well as s2 paragraph 2 1 of the current version of the SARS-CoV-2 Occupational Health and Safety Ordinance.
Please note employers should ensure that the works council is properly involved when a mask obligation is introduced. This is a prerequisite for the effectiveness of a warning or dismissal and avoids any nasty surprises in any subsequent dismissal or disciplinary procedure.