Update Employment Law February 2022
Online Covid-19 self-test certificate without doctor contact
Press release of the regional court Hamburg from 7.12.2021 - 406 HKO 129/21
The Regional Court of Hamburg has prohibited a Hamburg-based company in preliminary injunction proceedings from issuing Covid-19 test certificates or advertising the issuing of Covid-19 test certificates if the test itself was not performed or supervised by the issuing physician.
The company advertised self-test certificates on its website, which can be used wherever the 3G or 2G rule applies. The process described is simple: one performs a Covid-19 self-test (i.e. at home), fills out a questionnaire online and then receives a test certificate as a .pdf file.
The Centre for Protection against Unfair Competition (Wettbewerbszentrale) requested such a test certificate on a trial basis and found that no controls of any kind of the test result were performed. Nevertheless, the test certificate states that it was issued by a doctor. Although there was no contact with a doctor, a doctor confirmed on the test certificate ("under my medical supervision in my medical practice ...") that the person named in the certificate had no symptoms and was not infected with the Covid-19 virus.
Content of the press release
The Wettbewerbszentrale then objected the advertising as misleading. It is of the opinion that an incorrect impression is created to the effect that this certificate is a legally valid test certificate, which can be presented wherever proof of testing is required. However, this approach would not be in accordance with sec. 2 no. 7 lit. c) of the COVID19-Schutzmaßnahmen-Ausnahmeverordnung (SchAusnahmeV), which stipulates that the testing must have been performed or supervised by a health care provider. The issuance of a test certificate without any contact with a physician does not comply with these requirements. In addition, the information was also incorrect in terms of its content because, contrary to the information provided, the test has not been performed in a doctor's office or under the supervision of a specialist.
The Hamburg Regional Court followed the reasoning of the Wettbewerbszentrale and prohibited the issuance of the test certificates as well as the corresponding advertising.
Under the current 3G workplace regulations, only vaccinated, recovered, or negatively tested employees (Beschäftigte) are granted access to the worksite. This means employer must ensure daily checks of the test certificates. Violations are offenses subject to fines for employers as well as employees.
The employer may now face the problem that employees present test certificates, which do not comply with the legal requirements, yet are difficult for the employer to recognize as such. The place of issue of the certificate can be an indication of a lack of supervision and a test certificate that does not meet the legal requirements. If the place of issue is far from the employee's place of residence, the circumstances of the testing should be inquired. In cases of doubt, the test certificate should not be accepted. In addition to the impending high fines, employers should keep in mind that they also have a duty to protect their other employees.
Against the background of this decision of the Hamburg Regional Court, it is also advisable to (again) draw the employees' attention to the specific requirements of sec. 2 no. 7 of the SchAusnahmeV. In particular, it should be clarified that proof of testing in compliance with the legal requirements is only available in the case of supervised testing and that the employer can therefore not accept a test performed without supervision. Such a notice may be necessary since it may not be immediately apparent to the legal non-professional that the business model of online certification without supervision does not comply with the legal requirements. In the event of a deliberate violation of the testing requirements, consequences under labor law may be considered. The decision is not (yet) available in full text.