Judgment of the Labour Court of Siegburg of 16 December 2020 in Case 4 Ga 18/20
If an employer makes an order that employees must wear coverage over the mouth and nose (face mask) while on company premises, employees are generally required to follow this order. The interests in protecting the health of colleagues and all visitors and protecting them against infection outweigh the interests of employees in working without wearing masks.
Facts of the case
The employee is a member of the administrative staff of a town hall. In May 2020, the employer ordered that face masks were to be worn by all visitors when at the town hall and by all employees when they are not in their own offices. The employee presented a doctor’s certificate, which exempted him from wearing a mask but did not provide any further details. The employee offered to let the employee wear a face visor instead. The employee again refused and presented another doctor’s certificate which exempted him from wearing a face visor. The employer then refused to continue to employ the employee and the employee sought an injunction to enforce his right to continued employment. Alternatively, the employee claimed a right to work from home.
The Labour Court (Arbeitsgericht) in Siegburg seriously doubted the unreasonableness of the employee wearing a face mask and dismissed the urgent application. The employee’s right to continued employment is contrary to the right of visitors and colleagues to the protection of health and from infection. The employee had a duty of care to ensure the lowest possible risk of infection. In this case, the interests of the employee in employment without face covering had to take a backseat.
Without an applicable rule in an employment agreement or collective bargaining agreement, there was also no duty on the employer to allow the employee to work from home. Although it had been made possible for colleagues to work from home, the employee did not have to be given the same option because the colleagues had an agreement on the issue.
Even though the decision applies to civil servants, where the imposition of a duty to wear a face mask is concerned, it can be assumed that private employers can also use their right to give directions to order employees to wear a face mask. If an employer refuses to cover their mouth and nose outside of their office and is unable or refuses to give a medical reason for not wearing a face mask, the protection of the health of colleagues will outweigh the employee’s right to continued employment.
On the question of whether the employee should be allowed to work from home, it must be examined whether there is a legal basis for this right in each case, such as a clause in an employment contract or collective bargaining agreement. Where there is such a provision, it must be possible for the employee to work from home as an alternative to the termination of their employment.
The judgment is not yet final and binding. As we are still in the middle of a pandemic and there are currently few other ways to protect against infection, there is much to support for the principle established by the Labour Court in Siegburg. Employers can justifiably call into doubt a doctor’s certificate exempting an employee from wearing a mask, where the certificate does not provide any health reasons. In terms of a duty of care, employers should insist on the obligation to wear a mask.
The dynamic of corona measures means that labour law judgments must be continuously assessed to see whether they are still current. There is now an obligation to wear masks in all Länder so that the considerations set out in the judgment should be even more applicable. As long as the pandemic continues and the majority of the public is not yet vaccinated, employers can and must order employees to wear a mask.
Author: Ines Neumann