Germany: The employer can order employees to wear a mouth-nose cover
The plaintiff in the case at hand worked in the administration of a German town hall. In a letter dated 6 May 2020, the employer ordered the wearing of a mouth-nose mask for both visitors and employees in reaction to the Corona pandemic. This order applied to the whole premises of the town hall, effective as of 11 May 2020. Thereupon, the plaintiff submitted a medical certificate exempting him from the mask requirement without stating any reasons.
The employer then instructed the plaintiff to wear a face visor when entering the city hall and when walking down hallways and in shared spaces. However, the employee submitted a new medical certificate that again exempted him from wearing face visors of any kind without stating any reason. The employer did not want to employ the plaintiff at the city hall without any face covering. Subsequently, the employee tried to enforce the right to be employed without face covering in court. Alternatively, he wanted to be employed in the home office.
The labour court, however, has rejected the employee’s requests. First, the court had doubts about the validity of the medical certificates that exempted the employee from wearing a face covering. The court found that such certificates should contain specific and comprehensible information as to why a mask cannot be worn. In addition, the court found that the health and infection protection of all employees and visitors to the town hall outweighed the employee’s interest in employment without a face visor or mouth-nose covering. Furthermore, a claim to a home office workplace was denied.
This ruling is one of several that allow employers to order the wearing of mouth-nose covering in the workplace. This also complies with the current statutory requirements and the employer’s duty of protection and care in times of Corona. If employees refuse to follow the employer’s instructions, they may be given a written warning or may even by dismissed in case of repeated violations. However, employees may be exempt from the mask requirement in individual cases if they present a medical certificate. The court in the case at hand did not accept the medical certificates presented by the employee, as they did not state any reasons as to why the employee cannot wear a face mask or face visor. It should be noted though that there is an ongoing debate whether the requirement to openly state such reasons to obtain an exemption from the mask obligation is in line with data protection laws. Health related data is considered particularly sensitive. Therefore, it is possible that future cases where an employee presents a medical certificate exempting him from the requirement of wearing a face mask without stating any reasons will be decided in favor of the employee due to data protection.
For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Workplace Law at pusch@pwwl.de or visit www.pwwl.de.
