The German Federal Government originally planned to expand the use of rapid corona test kits on March 1, 2021 in order to help limiting the spread of corona virus. The tests were then to be made available free of charge. Although this rapid test kit deployment has now been delayed, it can be assumed that once it has been introduced, there will eventually be interest on the part of employers in ordering rapid tests in the workplace. But are employers in Germany legally allowed to demand their employees take such a test?
Employers are fundamentally obliged to protect the health of their employees. This applies in particular in times of the Corona pandemic. This duty is standardized as a duty of care in § 611a BGB (German Civil Code), § 618 BGB (German Civil Code), § 3 ArbSchG (Occupational Safety and Health Act) and in the SARS-CoV-2 Occupational Health and Safety Regulation. According to these, the employer must take “necessary measures” to protect health. Whether a measure is necessary depends on the specific current regional situation. In order to implement these measures, the employer basically has a right to issue instructions (§ 106 GewO – German Trade Regulations) to his workforce.
The situation is different when ordering employees to take a corona test. This is because, as a matter of principle, the employer cannot order medical examinations without good cause. Here, the employee’s personal rights and their right to self-determination on the one hand conflict with the employer’s obligation to protect the health of the other employees and take measures in this regard as well as the interest of the employer to avoid a company closure ordered by the authorities due to a coronavirus outbreak on the other hand.
In addition, applicable data protection regulations must be observed. The performance of coronavirus tests constitutes a processing of personal employee data, which is only permitted if it is necessary for the initiation, performance or termination of an employment relationship. Since health data play a key role here and these fall into a special category of data according to Art. 9 GDPR, data protection regulations must also be considered when determining the necessity of such a measure. From the point of view of the employer’s duty of care towards employees, one may assume that the data processing would be deemed necessary. However, it can be argued that even with tests, complete protection against infection cannot be guaranteed, and it cannot be dismissed out of hand that a test forced by the employer significantly interferes with the employee’s right to data protection.
In principle, the employer therefore cannot demand that the test be carried out without sufficient reason. However, if the performance of the work necessarily requires close contact with people and thus exposes the employee to a high risk of infection, as is the case, for example, with medical personnel and health workers, there is more likely to be a justified reason for the employer ordering their employees to take a coronavirus test.
If the employee refuses to take the test despite justified cause and contrary to the employer’s instructions, they do not offer their work performance properly. In such a case, the employer may be able to release the employee of their work duties and the employee’s entitlement to remuneration lapses.
Another noteworthy fact is that in Germany, the works council must be involved if the employer wishes to introduce rapid tests in the company. Rapid tests are measures in the area of occupational health and safety, an area that requires monitoring by the works council (§ 89 (1) BetrVG (German Works Constitution Act)). Any works council in the company must therefore be informed accordingly before the testing practice is introduced (§ 80 (1) No. 1 and no. 9 BetrVG (German Works Constitution Act)). In addition, the works council has a right of co-determination with regard to the measure (§ 87 (1) No. 1 and No. 7 BetrVG (German Works Constitution Act)).
Justification for the employer to conduct a rapid coronavirus test may also apply to individual employees: If an employee exhibits symptoms of a respiratory illness and the employer suspects that the employee may have a coronavirus infection, that employee must stay away from the workplace in accordance with No. 4.2.11 of the SARS-CoV-2 Occupational Health and Safety Regulation. If an employee exhibits symptoms that are typical of a coronavirus infection, such as cough, shortness of breath, fever, etc, the employer would thus be justified in ordering a coronavirus test if the employee still wishes to visit the workplace. In view of the considerable danger of a coronavirus infection, the short-term inconvenience for the employee that the performance of a rapid test may entail is deemed reasonable.
However, instead of performing a rapid test, in such a case we advise not to allow any employee displaying symptoms access to the workplace, if that is possible from an organizational standpoint. A rapid coronavirus test does not provide reliable protection against infection due to the inherent inaccuracy of the test system.