The approval of several rapid antigen tests as well as the expected future approval of further rapid test methods provide new opportunities in the working world, but also raise some questions. By way of a government-supported appeal, the leading associations of German industry have called on companies to offer their employees weekly self-tests or rapid tests. An obligation to do so, however, currently still does not exist.
The fact that a future obligation on the part of employers certainly is not out of the question is illustrated in particular by Saxony's current Corona Protection Ordinance. According to this, all employees and self-employed persons with direct customer contact are obliged to carry out a corona rapid test once a week as of 15 March. They are to be provided by employers, to the extent available, free of charge. In addition, as of 22 March, employers in Saxony are obliged to offer all employees who are required to be present at their workplace a corona rapid test once a week. As employees can conduct the tests themselves, companies do not have to provide testing centres with medical staff.
Despite the fact that, at least for the moment, companies still predominantly voluntarily undertake to conduct testing, in view of the ever-rising infection rates it is not unlikely that the government could still oblige companies to comprehensively test their employees by issuing a corresponding decree.
Admissibility of the obligation to carry out rapid tests under labour law
Can such testing obligations actually be enforced in employment law practice, however?
The legal framework is provided by § 106 sentence 2 German Industrial Code [Gewerbeordnung, GewO], according to which the employer is fundamentally entitled to issue instructions with regard to the organisation and conduct of employees at the business, unless corresponding regulations have been agreed otherwise. This right to issue instructions must be exercised with reasonable discretion.
As regards the permissibility of such an instruction, the interests of both sides need to be considered in the individual case. Protectable interests of employees include, in particular, their physical integrity, their personal rights and their right to informational self-determination. The protectable interests of the employer in economic activity and the employer’s duties of protection and care towards its employees must be weighed against the employees’ interests.
In our opinion, the interests of the employer will prevail, at least for activities which necessarily have to be carried out on the premises. Even when employees wear marks and maintain safety distances, there is still a residual risk of their becoming infected. Mandatory rapid tests therefore fulfil the employer's additional duty of care.
Another factor to be borne in mind is that rapid test methods such as "nasal" tests, and in future possibly "spit" tests, are considered much more pleasant for employees than the well-known PCR tests and therefore do not constitute an encroachment upon their physical integrity. Regular rapid tests also minimise the risk of undisclosed infections turning into mass infections that could result in the temporary shutdown of important parts of the business. Thus, the conducting of rapid tests should at least fall under the employer's right to issue instructions.
When an employer issues self-tests, it has a duty to inform the employee, particularly with regard to the need for a further PCR test in the event of a positive result. In addition, the employer should make it clear that an employee could face labour law consequences it he takes up work despite a positive test result. However, in our current appraisal, the employer is not permitted to demand information about the test result. Similarly, according to the decision of the Conference of the Heads of the Government of the Federal States [Ministerpräsidentenkonferenz, MPK] of 22 March 2021, employers are to issue employees with certificates on the testing. The content of the certificate should at least state which employee has received a test from which manufacturer and when.
Observance of the data protection requirements
In terms of data protection law, one must bear in mind that the evaluation of the tests involves the collection of health data. The permissibility of the data processing is essentially governed by § 26 (3) German Federal Data Protection Act [Bundesdatenschutzgesetz, BDSG]. This states that data processing is permissible insofar as it is necessary for the fulfilment of obligations arising from employment law and if there is no reason to assume that the employee has a prevailing interest that conflicts with the processing. The fulfilment of the employer's duties of protection and care, which is the purpose of the testing, is likely to outweigh the interests of the employee. This assumption is confirmed by §§ 22 (1)(b) and 24 BDSG, according to which the processing of such data for the purpose of health care and in order to assess an employee's fitness for work is permissible. One should note, however, that the health data collected may only be selective data records, which may not be stored or catalogued and which must be destroyed immediately after submission.
Involvement of the works council
The introduction of a corona rapid test obligation for employees affects the operational organisation and occupational health protection, which means that the works council has a fundamental right of co-determination.
Consequences under labour law
If access to the business premises is made dependent on the submission of a negative corona rapid test, this will have further consequences under labour law, including in particular possible remuneration claims of the employees.
If an employee refuses the permissible instruction to conduct a rapid test, he is unable to perform his contractually owed work as he cannot access his workplace, with the consequence that he is not entitled to remuneration and, in the event of his repeated refusal, can reckon with a warning or dismissal.
If an employee's rapid test is positive, but the employee does not exhibit any symptoms (of illness), he is not incapacitated for work. The employee could have wage compensation claims for the period of quarantine under § 616 German Civil Code [Bürgerliches Gesetzbuch, BGB] or § 56 German Infection Protection Act [Infektionsschutzgesetz, IfSG].
If, on the other hand, the employee exhibits symptoms, it generally has to be assumed that he is incapacitated for work, which leads to a claim under § 3 German Continued Remuneration Act [Entgeltfortzahlungsgesetz, EntgFG].
If the rapid test is falsely positive, the employee has a wage claim for default in acceptance. Any uncertainties in the use of rapid antigen tests may not be taken to his detriment.