What is a legal employee

No statutory regulation on compulsory tests in companies: What employers have to consider when performing rapid tests


Guest contribution by Dr. Michaela Felisiak and Dr. Dominik Sorber


Mandatory rapid tests could help companies where home office is not possible. But clear regulations are missing even after the latest Corona summit. Dr. Michaela Felisiak and Dr. Dominik Sorber explain what to watch out for.

Germany is in the middle of the third wave of the corona pandemic. The Federal Chancellor and the heads of government of the federal states discussed late into the night, but a statutory test obligation for companies and businesses was (again) not expressly agreed. Many employers would probably use corona rapid tests and introduce them as a mandatory entry requirement, were it not for the imponderables under labor law. Corona rapid tests could be a solution, especially in companies in which home office is not an alternative (e.g. production operations) or in which employees have customer contact (e.g. retail).

The "Corona Occupational Safety and Health Ordinance" does not provide any regulations for corona rapid tests. Rather, the known measures such as distance regulations, wearing mouth, nose and nose protection and other hygiene measures continue to apply. In addition, the work rooms must be ventilated regularly, ten square meters per person must be available if the activity permits, and the smallest possible and permanent work groups must be formed in companies with ten or more employees. These regulations are initially valid until April 30th of this year.

In the resolutions passed on Monday, it only says on operational rapid tests: "In view of the increasing number of infections, rapid implementation of the test offers is necessary in all companies in Germany. The tests should be carried out at least once and for employees if they are not working from home availability twice a week and certified. At the beginning of April, the trade associations will present a first implementation report on how many companies are participating. On this basis and on the basis of its own monitoring, the Federal Government will assess whether there is a need for regulatory action in the occupational health and safety ordinance . "

This does not regulate an obligation to test or the prerequisites for employers to be able to order rapid tests. An immediate change to the Corona occupational health and safety ordinance would have been necessary.

Can employers rely on the right of direction?

Without a legal basis, the general principles matter. Different legal norms can be considered as the legal basis for an obligation to test. Among other things, the Infection Protection Act (IfSG) - more precisely §§ 28 and 29 IfSG - is discussed in this context.

The basis of the claims of § 29 IfSG gained attention through a judgment of the Administrative Court (VGH) Munich (VGH Munich, decision of 02.03.2021, Az: 20 NE 21.353). The VGH Munich decided that the obligation to test for old people's and nursing homes cannot be justified with Section 29 IfSG. The court had left open whether the justification for introducing an obligation to test could be based on another legal basis - for example § 28 and § 28a IfSG.

In § 28a IfSG "Special protective measures to prevent the spread of the coronavirus disease 2019 (Covid-19)" are specified. Although the regulations of § 28 and § 28a IfSG are to be interpreted broadly, this is not necessarily a convincing legal basis for a test obligation in companies. Sections 28 and 28a IfSG are aimed at the competent authorities and not at (private) employers. This means that the legislature would first have to act at this point. Also, the regulation of § 28a IfSG does not provide for an immediate test obligation.

Another legal basis could be Section 3 of the Occupational Safety and Health Act (possibly in conjunction with Section 618 BGB). There it is regulated that the employer is obliged to take the necessary occupational health and safety measures, taking into account the circumstances that affect the safety and health of employees at work. Accordingly, it depends on the respective circumstances of the individual case and the corresponding preventive obligation of the employer.

The employer could also base a test instruction on the right of direction (§ 106 GewO). When exercising the so-called right of direction, the employer must consider the interests of the employees and weigh them against their own interests. In constellations in which employees have a lot of customer contact or the regulations of the current Corona occupational health and safety ordinance (e.g. regular ventilation in the production hall) cannot be implemented due to the actual circumstances, employers can order a corona rapid test to be carried out. At least if no other suitable protective measures can be taken.

This instruction presupposes a weighing of interests. In summary, the interests of the employees take a back seat to the interests of the employer, since the employer's interests such as health protection, duty of care and maintenance of the company outweigh the interests of the employer. In addition, the impairment of employee interests is not significant, since the execution of the rapid test is limited in time and does not represent a noticeable physical intervention.

If the employer demands tests, he has to bear the costs

It has not yet been clarified how often such a mandatory test may be required. So far there is no case law on this. The resolutions of the Federal Chancellor and the country leaders on Monday stipulate that rapid tests should be offered at least once and, if available, twice a week. It also states that "further obligations to make daily quick tests a prerequisite in areas where it is difficult to adhere to distance rules and consistently wear a mask".

Should the employer require a test, then he must - at least this is how the resolutions are to be understood - provide the appropriate logistics for this and also bear the associated costs.

Against the background of the prevention concept, however, the rapid tests are only necessary and therefore mandatory to instruct until the infection process can be controlled by other measures.

When it comes to data protection, note: personal rights vs. duty of care

In addition to the labor law, data protection regulations must also be observed. Carrying out quick tests represents processing of personal data that requires a legal basis. The supervisory authorities have not yet issued a final statement.

The processing of health data is regulated by Section 26 (3) of the Federal Data Protection Act (BDSG). According to this, the processing of health data for the purposes of the employment relationship is permissible if it is necessary to exercise rights or to fulfill legal obligations under labor law, social security law and social protection and there is no reason to assume that the legitimate interests of affected person outweighs the exclusion of processing. In addition, Section 22 (1) (b) BDSG also regulates that data collection may be permitted for the purpose of preventive health care and to assess the employee's ability to work.

The implementation of rapid tests can be based on the standards mentioned after the weighing of interests has been documented. The purpose of a rapid test is to contain the pandemic and to protect others - employees and customers - from infection in the workplace. In addition, it is conceivable that the parties to the company conclude a corresponding company agreement, as this can also be used as a basis for permission under data protection law.

A weighing of interests must also be carried out in the context of data protection. The principle of proportionality applies, so that the question must be asked whether there are other - less interfering with the rights of employees - but equally effective options for health protection. In addition, the employer's duty of care, who is supposed to ensure the health protection of all employees, must be observed. This means that employers have to prevent infection with the virus and serious courses. These interests outweigh the interests of the individual employee with regard to his personal rights.

If employees refuse to carry out a rapid test, they can be refused access to the workplace, so that the right to remuneration no longer applies.

The remaining risk remains with the employer

Given the current situation, however, there is still a residual risk for employers when carrying out rapid tests. If employers instruct rapid tests and employees refuse them, labor law disputes are inevitable. The Offenbach Labor Court has already decided in an interim injunction (ruling of February 4, 2021, Az.:4 Ga 1/21) that employees may be denied access to the company in such a case. However, the court based its decision solely on formal arguments, so that a substantive dispute is still pending.

In order to introduce a broad test obligation, however, an independent legal basis would be useful and necessary. Here the legislature should improve immediately and at least regulate the framework requirements - legally secure - for mandatory rapid tests in the "Corona Occupational Safety and Health Ordinance" nationwide.

From a data protection point of view, the legislator should also clarify that rapid tests are legally possible under the current conditions and if the data protection principles are complied with.

The authors are lawyers at BEITEN BURKHARDT in Munich and members of the Labor Law practice group. They advise your national and international clients in the entire field of labor law.