Recent ruling of the Federal Labour Court: mandatory coronavirus testing for employees is lawful

A flautist at the Bayerische Staatsoper was in dispute with her employer over remuneration claims for the period from the end of August to the end of October 2020. She did not comply with the mandatory PCR testing imposed by the employer. The employer then ceased paying her remuneration. The claimant was of the opinion that the employer was in default of acceptance because she was able and willing to work. Alternatively, she sought payment for practising the flute from home. The claimant also requested that she be employed without being subject to the coronavirus testing requirement.

In addition to the structural and organisational measures, such as the modification of the stage area and reorganisation of entrances and exits due to the COVID-19 pandemic, the Bayerische Staatsoper had developed an occupational hygiene policy. This included a testing strategy developed in collaboration with the Institute of Virology at the Technical University of Munich and the university hospital “Klinikum rechts der Isar”. For this purpose, employees were divided into risk groups and, depending on the group, required to undergo PCR testing at different time intervals. It was stipulated that the orchestra musicians had to submit a negative PCR test at the beginning of the 2020/2021 season and, beyond that, further negative PCR tests at intervals of one to three weeks. Free PCR test kits were provided by the Opera for this purpose. Alternatively, employees also had the possibility of submitting PCR test results from a provider of their own choosing. If these test results were not submitted, employees were not allowed to participate in rehearsals and performances. The claimant believed that the PCR tests were too inaccurate and constituted disproportionate interference with her physical integrity. In her view, unreasonable mass tests were unlawful and did not safeguard data privacy or medical secrecy. She was not paid her salary for the period from the end of August to the end of October 2020, during which the claimant did not perform the PCR tests. Subsequently, the claimant then submitted PCR test results on a regular basis from the end of October 2020 without acknowledging any legal obligation to do so.

The claimant’s appeal to the Federal Labour Court was unsuccessful. Under Section 618 (1) of the German Civil Code (Bundesgesetzbuch, BGB), the employer has a duty to organise work in such a way that employees are protected against risks to life and health. The Occupational Safety and Health Act (Arbeitsschutzgesetz) requires employers to take the necessary measures to prevent work-related health risks. In addition, the employer may issue instructions pursuant to Section 106 sentence 2 of the Industrial Code (Gewerbeordnung, GewO) with regard to the rules applicable to and conduct of employees in the company. The employer has reasonable discretion in this regard. In so doing, it must balance the mutual legitimate interests. In this case, this meant that the health protection of the employees had to be weighed against data protection and the physical integrity of the test subjects.

The Federal Labour Court found that the mandatory PCR testing imposed by the Free State of Bavaria was lawful. Technical and organisational measures as described above were initially taken by the Free State of Bavaria, but were not deemed sufficient, whereupon the occupational hygiene policy was introduced. This had been developed on a scientific basis and was therefore well-founded. The one to three week testing requirement was intended to protect employee health and enable the orchestra to perform. The mandatory testing imposed complies with the employer’s reasonable discretion pursuant to Section 106 sentence 2 GewO. The judges held that the minimal interference with physical integrity by the tests was proportionate. The mandatory testing is also not rendered unlawful by the fact that it affects the fundamental right to informational self-determination. In the event of a positive test result, the company would be notified anyway due to the reporting obligations under infection control law and the required contact tracing. The claimant's lack of willingness to perform did not constitute a default of acceptance.

The subsidiary motion was also unsuccessful. Accordingly, the remuneration claimed for practising at home is only justified if it is directed at services governed by the collective agreement, namely rehearsals and performances. The claimant had not participated in these during the period in question. The motion with which the claimant wanted to enforce the suspension of the tests of any kind for the detection of SARS-CoV-2 was therefore unfounded as a global claim because the period relevant for the applications for payment already showed that effective mandatory testing was possible.

The decision is ground-breaking for employers, as they are required to implement their obligations under occupational health and safety law in order to reduce the risk of infection in the workplace. This may also require mandatory testing. In its decision, the Federal Labour Court clarifies that employers are allowed to issue an occupational protection and hygiene policy with mandatory testing under certain conditions. The landmark ruling of the Federal Labour Court on this issue provides decisive guidance on how to balance the employer’s testing interests in the workplace and the protection of the health of the workforce with data protection and the physical integrity of employees.