On August 8, 2020, the regulation on the testing obligation of persons entering the country from high-risk countries („Risikogebiete“) came into force. According to this regulation, persons who enter the Federal Republic of Germany and have stayed in a high-risk country within the last 14 days must take a corona test (Section 1 (1) of the Regulation on the Test Obligation of Persons Entering from high-risk countries). For employers, the question arises whether they can demand that employees present the test result in such a case. For all other vacation returnees, it remains to be clarified to what extent the employer may demand that a corona test has to be taken.
Employers have a special duty of care for their employees according to Section 618 of the German Civil Code. This results in particular in the duty of the employer to ensure that there are no health risks for the employees (MüKo BGB/ Henssler, 8th edition 2020, BGB Section 618 marginal note 19). In the context of the Corona Pandemic, this means that the employer is obliged to keep the risk of infection for his employees as low as possible within the scope of his duty of protection and care. With regard to the employer's measures, a distinction must be made between employees returning from a high-risk country and those who have not been in a high-risk country.
In order to be able to protect his employees from infection, the employer must also have the appropriate knowledge of whether an employee has been in a high-risk country. Within the scope of his duty of care and protection according to Section 618 of the German Civil Code he is therefore entitled to ask questions in this regard (Grimm, ArbRB 2020, 230). The employee concerned is obliged to provide the employer with truthful information as to whether he has been in a high-risk country.
Since a person is obliged to take a corona test after returning from a high-risk country since the introduction of the test obligation, and to remain quarantined at home until then, the question now arises as to whether the employer can demand that the test result has to be handed over to him. The employer has to make sure that an employee only returns to work if it is certain from an occupational medicine point of view that he/she does not represent a safety risk for the company (LAG Berlin-Brandenburg, judgement of 28.08.2012, 19 Sa 306/12). However, there is an increased risk of infection for employees who come into contact with an employee returning from a high-risk country. The employer can therefore only effectively protect other employees from an increased risk of infection if he is aware of the test result (Sagan/Brockfeld, NJW 2020, 1113). He can therefore also demand the submission of the test result.
For all other vacation returnees, the employer must have a legitimate interest regarding the execution of a corona test. However, such a test must regularly be denied if there are no concrete indications of an increased risk of infection in the company. It should also be noted that the employer may not make its own assessment of when there is an increased risk of infection. Rather, regulations and analyses of the Robert Koch Institute and the authorities are decisive. If a vacation area is not classified as a high-risk country according to these regulations, it becomes difficult for the employer to justify an increased risk of infection.
However, the employer may - if possible according to the type of work - instruct the employee to work from home for a certain period of time after returning from vacation. Due to the exceptional situation of the corona pandemic, such a unilateral order is covered by the employer's right to issue instructions, provided that it is temporary and has not been explicitly excluded in the employment contract (Fuhlrott/Fischer, NZA 2020, 350).
In the context of the Corona Pandemic, employers have an even greater duty of protection and care for their employees. They must ensure that the risk of infection within the company is kept to a minimum.
Employers should draw their employees' attention to the high-risk countries published by the Robert Koch Institute before they start their journey and make internal arrangements to ensure that a 14-day quarantine or a negative corona test is required when returning from a high-risk country. In addition, it is advisable to request the employees' private contact details (E-Mail) for any information (e.g. about new recommendations by the Robert Koch Institute, new employer-side measures, etc.) for the period of the holiday-related absence.
For all other employees who have not been in a high-risk country, the employer has the possibility to instruct them to temporarily perform their work from home, if the nature of the employee's work allows it.