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01-29-2021CoronaArticle

Obligation to wear a mouth-nose protection when working as a flight security assistant

Update Employment Law February 2021

In a preliminary injunction proceeding, the Labor Court of Berlin confirmed the obligation to wear a mouth-nose protection provided by the employer. In particular, in the case in dispute, a face shield could not be worn instead of the mouth-nose protection prescribed here because it was less suitable for the protection of third parties. 

Facts

In October 2020, the Labor Court of Berlin essentially had to deal with the question of whether the employer may in principle require the wearing of a mouth-nose protection by way of his right of direction and, if so, whether the protection against infection can also be taken into account by wearing a face shield instead. 

The plaintiff is employed as a flight security assistant by the defendant, which provides security services at airports in Berlin. The injunction defendant required its employees to use a provided mouth-nose protection in an operating guidelines since April 2020 in order to reduce infection risks. Initially, the injunction plaintiff wore a face shield and not a mouth-nose protection. In early September 2020, the injunction defendant required the injunction plaintiff to wear a medical mouth-nose protection provided by her, which purpose is to protect third parties. After a warning for several breaches of the obligation to wear the provided mouth-nose protection as well as an attempt to wear one - related with certain health impairments - the injunction plaintiff was actually recommended in a brief report by a specialist in ear, nose and throat medicine to wear a full-face shield instead of a mouth-nose protection. The dispute between the parties now focused in particular on the question of whether the face shieldworn by the plaintiff can be regarded as sufficient mouth-nose protection. 

Decision

The Labor Court of Berlin did not recognize any injunction claim of the plaintiff and found that she could be obligated to wear the mouth-nose protection provided by the defendant. In the opinion of the Labor Court of Berlin, this order is covered by the right of direction of the defendant, who had also exercised this right at its reasonable discretion. On the one hand, the interests of the plaintiff in the injunction to continue working without mouth-nose protection and the related - partly disputed - health impairments were taken into account. On the other hand, the interest of the defendant in the highest possible protection against infection of its employees and the public at the airports in Berlin and the compliance with legal and occupational health and safety regulations were included in the weighing. Taking into account the SARS-CoV-2-Umgangsverordnung (Brandenburg) on commercial airports as well as the recommendations of the SARS-CoV-2 occupational health and safety standard (SARS-CoV-2-Arbeitsschutzstandards) of the Federal Ministry of Labor and Social Affairs, the Labor Court of Berlin determined that employers are entitled - in the case of the injunction defendant even legally obligated - to provide mouth-nose protections to employees who have unavoidable contacts or cannot maintain protective distances. Accordingly, a face shield in particular is not suitable for reducing the spread of transmissible droplet particles in an equivalent manner. Already conceptually it is not a matter of a mouth-nose protection, which represent textile clothing articles and are to serve protection for third parties. Structurally different from this are face shields, which are only intended to serve self-protection (see also "SARS-CoV-2 Occupational Health and Safety Rule"). In particular, the plaintiff has also not made sufficiently credible that the use of a mouth-nose protection is completely impossible or unreasonable for her because of a disability or for health reasons. 

Classification in the further jurisdiction

Apart from the fact that a decision in the main proceedings remains to be seen, this decision of the Labor Court of Berlin adds another "mosaic stone" to the case law in the field of infection protection. With regard to the obligation to wear a mask, courts in various legal areas have already decided that the merely general reference to "medical reasons" is not sufficient without, however, listing the specific health impairments to be named as a result of the obligation to wear a mouth-nose protection or what these impairments resulted from in detail (cf. currently OLG Dresen of January 6, 2021 - 6 W 939/20; OVG Münster of September 24, 2020 - 13 B 1368/20; Siegburg Labor Court of December 16, 2020 - 4 Ga 18/20; also in preliminary injunction proceedings OVG Berlin-Brandenburg of January 4, 2021 - 11 S 132/20). In some cases, it is even required that relevant pre-existing conditions are specifically identified and that it is (regularly) apparent on what basis the certifying physician arrived at his assessment. The present decision of the Labor Court of Berlin is likely to contribute to the fact that employees who wish to wear face shields instead of a mouth-nose protection have to justify with increased effort why these are equally suitable for preventing the spread of transmissible droplet particles. 

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