Imagine you instruct an employee to get tested for the Covid-19 virus infection. The employee refuses the test, claiming that the employer is not authorized to instruct him to take such a test. Moreover, the employee claims he had been vaccinated against Covid-19. What is the legal situation?

1. Under what conditions may the employer order corona testing to be carried out?

Whether the instruction to take a corona test is effective is determined in accordance with Section 106 of the Trade, Commerce and Industry Regulation Act (GewO). According to this, the employer can determine the type of work performance in more detail at his reasonable discretion. The exercise of equitable discretion requires that the interests of the employer (eg protection of the workforce and third parties, prevention of an administrative closing of a facility) are balanced against the interests of the employee (general right of personality).

a) Corona test without a reason

An instruction to carry out a corona test without any reason does not generally comply with the principles of equitable discretion (predominance of the employee's general right of personality).

The situation may be different if the employee has contact with third parties in the course of his or her work and the third parties must be protected from infection.

In this respect, the infection protection ordinances of the individual federal states must be observed. They oblige employers to subject certain occupational groups (eg in nursing) to regular Corona tests. In this respect, it is necessary to examine the relevant ordinance in each case, as these may well differ from one federal state to another, cf. eg Sec. 9 para. 3 BayIfSMV v. December 15, 2020, Sec. 5 para. 3 CoronaSchVO NRW v. 01/07/2021, Secs. 1b, 1c, Corona-EinrichtungsSchVO Hessen v. 11/26/20. In these cases, the instruction to take a corona test by the employer without a reason is also effective.

b) Corona test due to cold symptoms

If an employee shows typical symptoms of infection with the Covid-19 virus, such as cough, fever, cold, disturbance of the sense of smell and / or taste, sore throat (cf. website of RKI ), the instruction to take a Corona test is in any case possible in case an activity in the home office is not possible and there is a risk to colleagues or eg customers. In this case, the relatively minor encroachment on the general right of personality by a Corona test that may be unpleasant but only lasts a few seconds must take a back seat to the employer's interests in protecting third parties.

2. May the employee refuse a test after having been vaccinated against the Covid 19 virus?

To date, there is no proven evidence that vaccinated persons can no longer transmit the Covid-19 virus to unvaccinated persons (cf. website of RKI ). As long as this is the case, vaccinated employees cannot refuse an effective instruction by the employer to take a Corona test on the grounds that they have been vaccinated.

3. Must the employer compensate the employee who refuses to comply with an effective test order?

No, there is no obligation to pay if there is no possibility of employment for the employee without a Corona test. In this case, the untested employee does not offer any contractually owed services, which means that the employer is not in default of acceptance of these services (Sec. 615 BGB) and is not obliged to remunerate the elapsed working time.

4. Is it possible to issue a warning / termination?

If the employer has issued a justified instruction to the employee to take a Corona test, the employee is in violation of his contractual obligations by refusing comply with the employer's instruction. In principle, the employer can issue a warning for this violation and terminate the employment relationship in the event of sustained refusal. The individual case in question must be taken into account. The prerequisite is always that the employer cannot employ the employee without the Corona test. This applies, for example, to employees who work in nursing and thus have close physical contact with third parties.

5. Is the works council to be involved?

Before the employer instructs his employees to take Corona tests, he must involve the works council, as its rights to co-determination are affected (including health protection pursuant to Section 87 (1) No. 7 BetrVG).