There is no work without a corona test? Federal judges rule | Free press

The Bavarian flautist sets a precedent for employers’ rights to issue orders during the corona pandemic. The landmark ruling could affect thousands of workers.


The flautist from the Bavarian State Opera made her way through all court instances, resisting the crown test imposed by her employer:

Today, the highest German employment judge in Erfurt is to decide whether employers can recommend coronation tests to their employees. From a legal point of view, it is about the employer’s right to give instructions and the consequences thereof. Another crown dispute ends before the Federal Labor Court.

It is unclear whether federal labor judges will base their decision on a collective agreement for orchestral musicians, such as the lower courts in Munich, or will pass a fundamental sentence. According to experts, tens of thousands of workers would be affected if the number of corona infections in Germany increased drastically again in the fall. “The fundamental judgment could provide key information on how to consider data protection and health protection against the next wave of infection,” says Gregor Thüsing, professor of labor law at Bonn.

There is no job without a test

The musician of the orchestra refused to perform a PCR test at the beginning of the 2020/21 season, as required by his employer. The hygiene concept of the Munich State Opera assumed that all employees undergo a free test when they start working. Otherwise, they should be excluded from rehearsals and performances. The employer reacted quickly to the flutist’s refusal to take the exam – the consequence was the lack of work, and thus the lack of salary.

No government guidance

The case takes place at a relatively early stage of the crown pandemic, in August 2020, when many laws and regulations were still in the process of being drafted. State duty to test unvaccinated workers outside hospitals and care facilities only existed from November 2021 to March 2022. The Bavarian State Opera – like many other employers in Germany – has developed its own hygiene concept for its approximately 1,000 permanent employees of the time, including 140 orchestral musicians.

what the reason wants

The flutist insists that her salary for the months August-October 2020 will be paid later. It is of the opinion that there was no legal basis for random generic PCR testing and that neither data protection nor medical confidentiality was protected.

Your employer justifies its actions with a collective agreement for orchestral musicians (TVK), which includes a provision on the exclusion of infectious diseases. The first two instances in Bavaria dismissed the flutist’s complaint and refused to pay any additional remuneration. However, they referred to the collective agreement. Thüsing employment lawyer now hopes that a decision will be made on the right to issue orders. (dpa)

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