Germany: Latest COVID-19 related Case Law
Dismissal due to disregard of COVID-19 protection rules
The regional labour court of Düsseldorf had to decide in one of the first cases of dismissal, related to an alleged violation of the COVID-19 hygiene and distance rules. The company affected had a pandemic plan in place since March 2020. The rules of conduct included keeping distance from each other, hygiene measures as well as covering mouth and nose when coughing or sneezing. The employees were informed about these measures through several emails, a department meeting and leaflets.
In the case in hand, the employer dismissed an employee without notice and accused him of repeatedly failing to comply with the hygiene rules as well as safety distances. The employee had signaled to the employer not to accept and comply with the hygiene rules. In March 2020, the employee was accused of intentionally coughing at a colleague without keeping enough distance. However, the evidentiary hearing could not sustain these allegations. Therefore, the termination was not effective.
The court ruled that the accusations – if true – were suitable to justify a dismissal. If an employee coughs at a colleague at close range and says that he hopes that the colleague would catch COVID-19, the duties arising from the employment relationship are significantly violated. If an employee makes clear not to comply with hygiene and protection regulations, a warning is not necessary. However, the employer was not able to prove the allegations, which led to the ineffectiveness of the dismissal. Nevertheless, this decision shows that employees who do not comply with COVID-19 related safety and protective measures can be dismissed or at least a warning can be issued. However, the employer must be able to prove that this behavior actually took place (e.g. video recordings or statements by other employees).
No employment due to the exemption from mask obligation
In the case in hand, the employer ordered the wearing of mouth-nose-covering at the premises from May 2020 onwards. The employee submitted two medical certificates exempting him from the requirement to wear a mask and also from the requirement to wear a face visor. The employer did not want to employ the employee without any kind of mouth-nose-covering and therefore refused employment. The employee tried to enforce his employment in court and wanted to work from home alternatively.
Since the beginning of the pandemic, wearing masks in the workplace has been mandatory. The regional labour court of Cologne ruled that employees being unable to wear a mask (based on a specific medical certificate), are unable to work and therefore are not to be employed. If the work is to be performed at least in part at the workplace, a claim for working from home is not justified either.
This ruling is further one with regard to the obligation to wear a mask at the workplace. The protection against infection and the interest (and duties) of the employer are taken into account insofar as employment without a mask may not take place. Up to now, the labour courts have a rather strict approach here. However, it remains to be seen what consequences this ruling will have regarding continued payment of remuneration and other questions as the detailed reasons of the judgment are not yet available.