Erfurt / Munich (dpa) – Flutist at the Bavarian State Opera, having resisted the corona test recommended by her employer, broke through all court instances – and secured a landmark sentence.
Germany’s highest labor judge said in Erfurt on Wednesday that employers can order coronation tests to reduce the risk of infection for their employees. Such a provision is possible, but the inspection obligation must be proportionate and weigh the interests of both parties, the Federal Labor Court (BAG) ruled in a dispute over test obligations in the hygiene concepts of private and public companies.
Reasoning of federal labor judges
The V Senate explained that employers have a duty of care and can issue orders in the interests of occupational health and safety to protect life and health. “According to BAG jurisprudence, employers must take action if there is a risk to workers,” Chairman Rüdiger Linck said at the hearing. The protection and hygiene concept of the Munich State Opera, in which the claimant worked for about 25 years, was issued with scientific advice on the basis of the Bavarian Corona Regulation. “The minimal breach of physical integrity associated with testing is proportionate,” said the judges.
Consequences of the decision
According to experts, the verdict will affect thousands of workers if the number of corona infections in Germany rises sharply again in the fall. Gregor Thüsing, professor of labor law in Bonn, says there may be “decisive information on how to consider protecting your data and protecting your health from the next wave of infections.” “Many have insisted on operational testing in the past.”
The case of the Munich flautist
The musician of the orchestra refused to take the PCR test at the beginning of the 2020/21 season, which was required by its employer. The hygiene concept of the Munich State Opera assumed that around 1,000 permanent employees are tested free of charge when they start work, and 140 musicians are still tested after one to three weeks. 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. It was approximately EUR 18,000 gross. Like the lower courts in Bavaria, the BAG declared that the requirement for the PCR test was legal – and also that no remuneration was paid due to “not wanting to work”.
No government guidance
The case takes place in the relatively early phase of the crown pandemic, in August 2020. The state-imposed obligation to test unvaccinated workers outside hospitals and care facilities only existed from November 2021 to March 2022.
Orchestral musician’s lament
The flutist insisted that her salary for the months from August to October 2020 be returned. Through her lawyer, she stated that there was no legal basis for conducting random generic PCR tests and that neither data protection nor medical secrecy were protected. What prompted you to go through all the instances? “She felt unfairly disfellowshipped from her job,” said her attorney. In the meantime, she no longer belongs to the Polish National Opera – she was released. The lawyer declined to comment on the reasons.
The lawyer who represented the National Opera, and ultimately the Free State of Bavaria, referred during the hearing to protect team members and the public against the coronavirus. The opera house made changes to the orchestral box, played pieces with a smaller cast – it finally became clear: “Distance and plexiglass are not enough. We have a very sensitive area. “
Notice from the Federal Labor Court