Germany Update: Mask obligation and employment entitlement for medical certificate

Circumstance

The employee employed by the defendant municipality worked in the building authority until the beginning of the corona pandemic and had a job in the town hall of the municipality, where he carried out a large part of his activities. In May 2020, the municipality ordered the wearing of a mouth-nose covering for the workplaces in the town hall building, after which the employee presented medical certificates that exempted him from wearing a mouth-nose protection and also a face visor. The background was the traumatization resulting from a crime suffered at the age of 13, which makes it impossible for the employee to cover his face.
The employee was then almost continuously unable to work and sought actual employment by way of interim legal protection and a finding that he did not have to wear mouth-nose protection or a face visor during his working hours in the town hall, in the alternative the possibility of working from home.

Decision

In its judgment of 12 April 2021 (file number 2 SaGa 1/21), the Cologne Regional Labour Court (LAG) ruled that the employee is not entitled to have the municipality tolerate his work in the town hall without wearing a mouth-nose covering.

The mask requirement arises from the Corona Protection Ordinance of the State of North Rhine-Westphalia and the SARS-CoV-2 Occupational Safety and Health Ordinance, but is also in principle covered by the employer’s right of direction and appropriate in the specific case. The order for masks is proportionate, in particular, also taking into account the fact that the worker suffers from a mental illness which makes it impossible for him to wear a mask. The employer’s interest in keeping the emission of aerosols in the town hall as low as possible is paramount to the employee’s interest in being able to work without a mask. In this respect, the fact that the employee cannot wear the mask due to a mental illness and that he is therefore entitled to continued payment of remuneration and sick pay, which is regularly sufficient to enable a cure, is also capable of being taken into account.

The LAG also rejected the auxiliary request to enable work in the home office. For example, the establishment of a mobile workplace would be precluded by compelling operational reasons. The necessary work equipment could not be made available to the employee with reasonable effort due to the digitization of construction files and plans that has not yet taken place. Not all of the employee’s activities would be possible through mobile working, so that incapacity for work would continue with regard to the remaining activities. However, the Continued Payment of Remuneration Act does not provide for a “partial incapacity for work”, which is why the possibility of partial work performance in the home office cannot then restore the ability to work and the investment in the mobile workplace is useless.

Result

The decision of the LAG Köln clearly shows the limits of the general employment entitlement in corona times. The employer’s interest in the protection of employees and the public outweighs the employment interest of the individual employee. If an employee is exempt from the mask requirement on the basis of a medical certificate and is therefore unable to perform even part of his work, on the basis of this case-law there is an incapacity for work giving rise to a claim for continued payment of remuneration and sick pay. As a result, employees willing to work are deprived of the opportunity to perform even partial work. On the other hand, there is a risk of abuse that cannot be dismissed out of hand with regard to the continued payment of remuneration as “wages without work” as a result of the submission of obtained medical certificates, the correctness of which is difficult for the employer to verify.

By Samuel Gruber, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.