Wearing a mask or other mouth-nose covering is of considerable importance in the containment of the COVID-19 pandemic. Under the new Corona Occupational Health and Safety Ordinance, there is a basic obligation to wear a medical face mask or FFP2 mask in the workplace. But what happens if it is not possible for a worker to wear a face mask for health reasons? How can the conflict between the individual worker’s health protection and the collective health protection of the workforce be resolved?
According to the Corona Occupational Health and Safety Ordinance, the employer is generally obliged to provide medical face masks or FFP2 masks (or comparable respirators specified in the Annex to the Occupational Health and Safety Ordinance) if the conditions described in the Ordinance are met, in particular if the minimum distance of 1.5 metres cannot be maintained. Workers must wear the masks provided by the employer (s3 paragraph 1 of the Corona Occupational Health and Safety Ordinance).
Workers who cannot wear a mask for medical reasons, for example, because they suffer from respiratory diseases, are exempt from the obligation to wear a mask. The existence of medical reasons must be proven by a medical certificate (e.g. s3 paragraph 4 (3) of the Corona Protection Ordinance, NRW). The certificate must meet higher requirements and enable the employer to independently verify the existence of the criteria for exemption from the mask obligation based on concrete and comprehensible information (Sieburg Labour Court of 16 December 2020 – 4 Ga 18/20).
But how to deal with the situation where an employee proves with a suitable medical certificate that s/he cannot wear a mask for medical reasons, but the employer has to ensure protection against infection in the workplace by implementing the mask-wearing obligation? How can the conflict between protecting the individual employee’s health and protecting the collective health of the workforce be resolved?
In principle, consensual solutions are preferable. First, employers should explore whether other equally effective measures to wearing a mouth-nose covering, such as the provision of an individual office, could be considered. This is because the Occupational Health and Safety Ordinance allows the employer to take alternative measures to issuing medical face masks if these measures ensure equally effective protection against infection (s3 paragraph 3 of the Corona Occupational Health and Safety Ordinance). In particular, home office solutions are to be considered, which the employer must offer if there are no compelling operational reasons to the contrary (s2 paragraph 4 of the Corona Occupational Health and Safety Ordinance). However, according to the explanatory memorandum to the Occupational Health and Safety Ordinance, the employee is not obliged to accept home office. Other options include taking leave and taking time off by mutual agreement.
But what if an amicable solution does not succeed, for example because the job is not suitable for home office or the employee is not willing to take his or her entire annual leave until the mask requirement is relaxed again or lifted completely? After all, the Occupational Health and Safety Ordinance does not expire until 15 March 2021 (and an extension is possible).
Here, a unilateral exemption of the employee comes into consideration. In principle, the employee has a right to employment in accordance with his or her contract. However, it is unreasonable for the employer to employ a worker who cannot wear a face covering if this would undermine the organisation‘s protection against infection, which cannot otherwise be guaranteed (s275 (3) of the Civil Code). The most difficult question then arises: who must pay for the financial consequences of the unilateral leave of absence, the employer or the employee?
The principle of ‘no work, no pay’ applies here, unless an exception applies. It is possible that the claim to remuneration is maintained due to the employer’s failure to accept the employee’s performance of work (‘default of acceptance’ s615 paragraph 1 of the Civil Code). However, there are good reasons why there is no default of acceptance in the present case.
According to settled case-law, an employer is not obliged to accept the employee’s performance of work if, upon acceptance of the services offered, the life, limb, freedom, health, honour, other personal rights or property of the employer, its relatives or other company employees are directly endangered in such a way that the defence against this endangerment must take priority over the employee’s interest in maintaining his or her earnings (Federal Labour Court Großer Senat of 26 April 1956 – GS 1/56; and Federal Labour Court of 16 April 2014 – 5 AZR 739/11). Since in the present case the health of other workers as well as of the worker concerned would be endangered if the worker were employed on-site without a face covering, it seems justifiable that the worker could be released without pay.
If it is not possible for an employee to wear a mask for health reasons, an amicable solution should first be sought. If this does not succeed, the employee’s unilateral unpaid leave of absence can be considered if protection against infection in the workplace cannot be otherwise guaranteed. In contrast, further measures under labour law (e.g. a warning) are generally ruled out, as the employee is not in breach of any duty. In particular, termination of the employment relationship (for personal reasons) is also out of the question, since the leave of absence is a less severe measure and permanent disruption of the employment relationship as a result of not wearing a mask is not anticipated, since the COVID-19 pandemic will end sooner or later.