Update Employment Law August 2022
Remuneration claim of mask refusers
LAG Berlin-Brandenburg, Judgement of April 26, 2022 - 7 Sa 106/22
In its ruling of April 26, 2022, the LAG Berlin-Brandenburg confirmed that employers may, within the scope of their right of direction under Section 106 of the German Trade Regulation Act (GewO), order employees to wear a mask in certain situations in order to protect their health. The submission of a blanket medical certificate is not sufficient to sufficiently demonstrate being prevented from doing so for health reasons. In this case, the offer of work without a mask also does not put the employer in default of acceptance (§ 615 BGB), so that a claim for remuneration is ruled out.
The parties dispute remuneration claims for periods in which the defendant neither employed nor paid the plaintiff because he refused to wear a mask at work.
The plaintiff has been working for the defendant, a food processing company without a works council, as a plant operator/shift supervisor since March 2018. Due to the Corona pandemic, the defendant introduced a mask requirement in October 2020 on the basis of its right of direction. Wherever a minimum distance of 1.5 m could not be maintained and in all public areas, as well as when leaving the work area, employees were to wear a mouth/nose covering in the future. The option of vaccinations or a rapid antigen test did not exist at that time. After the plaintiff had already publicly spoken out against a mask requirement in advance, he presented the defendant with two medical certificates in which - without further explanation - he was "advised against" wearing a mask or the wearing of it was described as "unreasonable". The certificates were formulated in a very sweeping and ambiguous manner in this regard. Since the plaintiff also refused to wear a face mask, the defendant subsequently no longer employed him and no longer paid him any remuneration.
Decision of the LAG
Like the Neuruppin Labor Court, the Berlin-Brandenburg Labor Court (LAG) dismissed the claim in its entirety. Accordingly, the plaintiff has no claim to remuneration against the defendant under §§ 611 a (2), 615 BGB in conjunction with the employment contract. The court confirmed that the defendant was not in default with the acceptance of the work performance within the meaning of §§ 293 ff. BGB (German Civil Code).
According to § 106 GewO, the defendant was allowed to effectively order the wearing of a mask at work. The instruction was in accordance with reasonable discretion, since the obligation to wear a mask was part of a hygiene concept to avoid infections. The obligation to wear a mask had generally been limited to only a few minutes, since in most cases the minimum distance could be observed anyway. In this context, the LAG Berlin-Brandenburg once again emphasized that the plaintiff's general right to privacy is limited by the right to physical integrity (Article 2 (2) sentence 1 of the German Basic Law) of the other employees.
In principle, the plaintiff was obliged to present and prove corresponding health reasons that spoke against wearing a mask. However, the mere submission of the two medical certificates was not sufficient for this purpose. It was not clear from the contents that the plaintiff could not reasonably be expected to wear a mask for reasons relating to his own health. In both certificates, the plaintiff was only advised against wearing a mask for "general practitioner reasons" and for "medical reasons". The submitted certificates thus also do not serve as prima facie evidence of unreasonableness. In the opinion of the Berlin-Brandenburg Higher Labor Court, the probative value of a medical certificate for mask exemption must be clearly distinguished from that of a certificate of incapacity for work in the context of continued payment of wages proceedings. In the present legal dispute, the submission of a medical certificate was precisely not suitable for depriving the defendant of the right to refuse performance within the meaning of Section 7 (1) No. 1 EFZG. Finally, there are also no comparable regulations for the medically certified mask exemption.
Supporting the court explains that the evidentiary value of the certificate had been shaken anyway alone by the previous behavior of the plaintiff. The plaintiff had already made disparaging remarks about a possible mask requirement in advance and had even stated to third parties that the doctor he had visited issued "mask exemptions."
The decision of the LAG Berlin-Brandenburg is to be supported. This case once again shows the importance of the employer's duty of care towards other employees.
We also agree with the opinion that, with regard to the unreasonableness of wearing a mask, medical certificates generally do not have the same high probative value as certificates of incapacity for work with regard to the question of continued payment of remuneration. A blanket medical certificate of exemption from wearing a mask is not sufficient to put the employer in default of acceptance. Anyone who refuses to wear a mask and nevertheless continues to claim remuneration must present more than a mere certificate of compliance.
From the employer's point of view in particular, the legal certainty thus gained with regard to the question of remuneration for mask refusers is to be welcomed in this respect.