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Mandatory masking - Yes, mandatory vaccination - No - New challenges in working practice

February 2021 · Estemated readtime: Min

Ein erhellender Blick auf arbeitsrechtlich bislang nahezu unberührtes Terrain

The corona pandemic has brought with it numerous new challenges for operational processes. Health protection is more in focus than ever before. One omnipresent topic is the mandatory masking requirement and its exceptions. With the announcement by the German government that it will be possible to offer everyone in Germany a vaccination as of the summer, the first questions are now also being asked about this. Time for us to shed some light on what has so far been virtually untouched territory in terms of labor law.

Authority to order mandatory mask wearing confirmed

The Siegburg Labor Court (Case No.: 4 Ga 18/20) recently ruled that employers are entitled to order the wearing of a mouth-nose mask during working hours. Even though many Corona protection ordinances of the federal states regulate the general obligation to wear a mouth-nose covering, most of them do not contain specific regulations for the workplace. Therefore, this decision provides a tailwind for employers who face discussions with employees in this regard.

Authority to order mandatory mask wearing confirmed

The Siegburg Labor Court (Case No.: 4Requirements for exemptions from the mask requirementMany employers receive medical certificates from employees that provide for exemption from the mask requirement. This raises the question of whether employers must accept these certificates without further ado? There have not yet been any labor court rulings on this issue. However, since the mask requirement triggers disputes in different areas of law, there are already initial tendencies, at least from the administrative and civil courts. True to the motto "Two lawyers, three opinions", however, there is no unanimity here. Both the OVG North Rhine-Westphalia (Az.: 13 B 1368/20) and the OLG Saxony (Az.: 6 W939/20) have decided for the area of teaching courses that a certificate for exemption from the mask obligation must comprehensibly show which concrete health impairments are to be expected due to the mask obligation and what these result from. The simple confirmation of the exemption from the mask obligation without justification is not sufficient. The OVG Berlin-Brandenburg (Ref.: OVG 11 S 132/20), on the other hand, ruled that the order to note the diagnosis and the resulting reasons for the exemption from the mask requirement was unlawful. The person concerned was thereby forced to disclose highly sensitive health data.

The data protection objection is initially understandable. However, health protection and pandemic containment could, under certain circumstances, constitute a legitimate public interest in this data processing. However, due to the sensitivity of the issue, employers should be cautious about requiring detailed justification. If there are doubts about the health necessity of the exemption from the mask requirement, the first step may be to talk to the employee to clarify the situation. It would also be conceivable to involve the company physician in order to obtain an objective second opinion. Whether the employer is obligated to employ the employee without mouth/nose covering in the presence of a medical exemption ultimately depends on the individual case. In each case, the specific activity, the respective workplace and alternative protective measures must be carefully weighed up. If it is not possible to work without a mask without providing adequate protection for other employees, the question arises as to whether the employee who cannot wear the mask for health reasons is unable to work. Ga 18/20), it was recently ruled that employers are entitled to mandate the wearing of a mouth-to-nose covering during working hours. Even though many Corona protection ordinances of the federal states regulate the general obligation to wear a mouth-nose covering, most of them do not contain specific regulations for the workplace. Therefore, this decision provides a tailwind for employers who face discussions with employees in this regard.

No compulsory vaccination - employers need to be creative

There is currently no legal obligation to vaccinate against COVID 19. Due to the constitutionally protected right to physical integrity, employers are not allowed to order their employees to be vaccinated. Accordingly, there are no conceivable sanctions under labor law, such as warnings or dismissals, if employees refuse to undergo vaccination.

Nevertheless, measures are conceivable that could privilege vaccinated employees and thus increase the overall willingness to be vaccinated. If an activity is suitable for the home office, the return to the company can be linked to the prerequisite of an appropriate vaccination. The employee then remains free to continue working in the home office and not be vaccinated. In addition, employers could exempt vaccinated employees from the obligation to wear a mouth-nose covering - at least if it has been scientifically proven that vaccinated people cannot transmit the virus. Furthermore, participation in summer parties or Christmas celebrations can be made dependent on proof of vaccination. Vaccination premiums are also conceivable as a monetary incentive.

In the case of all these measures, the existing co-determination rights of the works council and the general principle of equal treatment must always be taken into account.

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