Requirements for a medical certificate of exemption from the facemask requirement
Update Employment Law September 2021
Labor Court of Cottbus, judgment as of June 17, 2021, ref. no. 11 Ca 10390/20
Despite the progressing vaccination campaign, our everyday working lives are still strongly influenced by the Corona pandemic. Wearing a facemask in public spaces is still mandatory, even for those, who have been vaccinated or recovered. Employers may also instruct their employees to wear a facemask in the workplace. It is therefore common for the employees to seek an exemption from the requirement to wear a facemask by providing a medical certificate. Which requirements are to be made to such a medical certificate, the Labor Court of Cottbus had to decide recently in its judgement as of June 17, 2021 (ref. no. 11 Ca 10390/20).
The decision of the Labor Court of Cottbus was based on the following facts: The employer, owner of a logopedic clinic, ordered her only employee to wear a facemask during work. The employee refused to wear the facemask submitting several medical certificates as well as the statement of an attending doctor confirming that wearing a facemask would be unreasonable for the employee so she would suffer from disorders. The employer then offered the employee various masks to try and to train with, as well as additional breaks. After the employee repeatedly wanted to work without the facemask despite the employer's instructions, the employer terminated the employment relationship with due notice.
The Labor Court of Cottbus declared the dismissal to be effective. In particular, the Labor Court of Cottbus considered the medical certificates issued to be insufficient for the prima facie case of health reasons that could justify an exemption from the obligation to wear a facemask, as the certificates merely stated that the employee was exempt from the requirement to wear a facemask for health reasons. This was not sufficient as a basis for making a decision regarding an exemption. Rather, the content of the medical certificate must be such that the person whom the medical certificate is submitted to shall be able, based on concrete, comprehensible information, to examine comprehensibly the existence of the conditions for the exemption. The medical certificate has to indicate, which specific health impairment is to be expected from wearing a facemask and what this will result from in detail. In addition, it must be recognizable how the attending doctor came to his/her decision. Medical Certificates merely confirming that the employee is unable to wear a facemask, do not meet these requirements, nor does a medical statement that only contains a general reference to the disorders caused by wearing a facemask.
In the opinion of the Labor Court of Cottbus, the decision whether an exemption from the facemask obligation is admissible shall be the responsibility of the employer and not – as in the case of certificate of incapacity for work – of the attending doctor. Therefore, the employer shall be able to decide on the exemption from the facemask obligation relying on the medical certificate submitted by the employee. For that reason, the employer has exactly to know which specific impairments are to be expected by the employee from wearing the facemask, what these impairments could be in detail and on what basis the attending doctor came to that conclusion. According to the particular judgment of the Labor Court of Cottbus, the requirements for the content of medical certificate on exemption from the obligation to wear a facemask are very high. However, the judgement of the Labor Court of Cottbus on the exemption from the facemask requirement can be considered as a balancing act for the employer in terms of data protection law. Since the employer is subject to strict legal restrictions when processing the health data of the employees including any illness diagnoses, the employee could refuse his consent to exempt the attending doctor from the medical confidentiality obligation and to communicate the medical diagnosis.
Even the civil law jurisprudence (Higher Regional Court of Dresden, judgement of January 6, 2021, ref. no: 6 W 939/20) does not see any data protection concerns in naming specific medical diagnosis in medical certificates, it is highly doubtful that the Labor Courts would follow the legal opinion of the Civil Courts since the protection of personal (health) data is highly important in employment relations. Therefore, it remains to be seen excitedly how the conflict of interests between the employer's right to information and the protection of the employee's health data will be resolved in the future. Nevertheless, due to the clear position taken by the Labor Court of Cottbus, the number of medical certificates of convenience regarding the unreasonableness of wearing a facemask is likely to decrease significantly for the time being.