Corona protection in the company: can bosses still ask for masks?

Status: 5/28/2022 08:41

The SARS-CoV-2 regulation on occupational health and safety expired this week. The previous ground for distance requirements and workplace mask requirements no longer applies. What companies can prescribe in the fight against Corona?

The Health and Safety at Work Act requires employers in Germany to take measures to protect their employees. This also includes implementing the requirements of the SARS-CoV-2 regulation, which was specifically issued during the corona pandemic. This regulation has already been amended several times in the past. As the current version has expired this week, this special foundation regarding distance requirements and workplace mask requirements no longer applies.

employers themselves have a duty

As a rule, employers still have the option of introducing such rules if they deem them necessary for the protection of their employees. One possibility is the mask requirement.

Employers are now once again fully responsible for carrying out a risk assessment for their company and checking what measures are required to protect their employees. This can vary greatly from industry to industry and ranges from the usual protective measures that are also used without a crown – for example, wearing gloves as protection in production halls – to a specially required uniform at the workplace.

Ultimately, as before, the employer must independently ensure that his employees do not work in conditions harmful to their health. This also includes providing protection against Corona infection in specific situations. However, it is not clear what exactly companies must do for this purpose and how closely it should be dealt with.

Occasional extension through the rear door

However, some Länder, such as Hamburg and Lower Saxony, have made use of the exception in the Infection Protection Act and re-issued their own legislation for certain sectors. These own regulations then only apply in the federal state that enacted them. For example, in Hamburg, there is still a mask requirement for visitors and workers in care facilities.

Protective measures must be proportionate

According to Hamburg labor law expert Professor Michael Fuhlrott, companies that issue orders or hygiene measures that go beyond the law must always respect the employee’s personal rights.

The so-called directive law allows employers to prescribe protective measures that go far beyond the law, but these must be proportionate. The business environment also plays an important role. For example, in a hospital, of course, more extensive action can be taken than in an office that is not in intensive contact with vulnerable groups.

In the event of a dispute, the courts would have to resolve

The question is what is proportionate and where is the potential for controversy? Ultimately, the courts would have to make a decision. Therefore, masks and mandatory workplace tests will have to be carefully considered in the future. This also applies to sanctions imposed by employers on employees who refuse to comply with the laws protecting against corona infection. The person concerned may have been assigned to another job or assigned to a home office.

If employers wish to enforce stricter penalties, such as wage cuts or layoffs, this is problematic in many cases. In the past, there have been many disputes over the obligation to wear masks in the workplace. But now workers are in a more promising position, for example, in the event of a layoff.

Possible consequences of a dispute over the termination of the contract

In the event of a dispute and the resignation of the employer, the employee has the right to take action. “Termination by the employer is effective until the employment court decides otherwise. This means that the employee is sitting at home during a legal dispute, ”Fuhlrott explains. “If the final decision is in his favor, ie the instruction and termination were illegal, the employee will return to the company. In that case, the employer would have to pay him his salary for the last two years. ‘

This means the so-called non-acceptance: in this case, the employee was willing and able to work. The employer, however, did not allow him to work and therefore he was behind schedule. “But if the court were to find that the order was lawful, termination would, in principle, be effective. In future, the means of testing or wearing face masks will therefore need to be well justified – after careful consideration.

Debate on obligatory crown masks in the fall

Philipp Eckstein, ARD Berlin, May 28, 2022 11:50 am

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