Employers generally have no control over their employees' compliance with health measures outside of work. Does this hold true during the ongoing pandemic?
The Covid-19 pandemic is still omnipresent. While employers, on the basis of their right to issue instructions, can dictate hygiene regulations at work, the employees themselves decide in their free time whether or not they comply with the recommended corona protection measures. This raises the question of what effects non-compliance with corona protection measures during leisure time by corona-sceptical employees can have on the employment relationship.
Case studies in connection with anti-corona demonstrations
Recently, there have been media reports that an employee of a nursing home was given extraordinary notice of dismissal for cause because she refused a Covid-19 test after taking part in a demonstration against compulsory masks in Berlin despite having cold symptoms. Her participation in the demonstration could be seen on a Facebook post. According to reports, the employee is now fighting the dismissal in court.
In addition, the media had previously reported on the extraordinary dismissal of a professional basketball player by his club. The basketball player had published photographs of himself on social media at a large anti-corona demonstration in Berlin without wearing a mask. His employer saw this as a 'violation of the provisions of the current employment contract'. According to reports, the basketball player is also fighting the dismissal.
The legitimate question for employers therefore arises as to what measures they can take in reaction to the behaviour of their employees outside the workplace in order to protect the entire workforce and their interests during the ongoing corona pandemic. Can the employer dismiss an employee (by way of an ordinary or even extraordinary dismissal) because the employee refuses a Covid-19 test despite showing symptoms after participating in an anti-corona demonstration? What if an employee strictly refuses or deliberately ignores hygiene and clearance rules in his or her spare time?
Free time is basically a private matter
In the workplace, the employer can regulate the order and conduct of its employees by means of its general right to issue instructions. However, the employer's right to issue instructions does not extend to an employee's private life. So if the employee violates the recommendations of the health authorities on maintaining a minimum distance and the use of a face mask in his or her free time, the employer basically has no control over this.
The situation is different when it comes to effects on the employment relationship
However, the situation is different if such activities have an impact on the employment relationship or the operational environment.
In the case of a nursing home employee who has professional contact with high-risk patients, for example, a balance must be struck between the employee's freedom of opinion and action on the one hand and the health of the nursing home residents on the other. It will also have to be taken into account that nursing is a particularly sensitive area of work in which stricter hygiene regulations apply. Nursing homes are obliged to protect their staff and residents as comprehensively as possible from infection with the coronavirus.
Likewise, due to the special contact situation in team sports, the dismissed basketball player could have infected the other players and employees of the club in the event of an infection with the coronavirus.
Possible reactions of the employer
Employers will first have to determine whether an employee's participation in an anti-corona demonstration actually results in an increased risk potential. If, for example, it can be seen in photographs published in social media that the employee has been moving in a larger crowd and has ignored both the requirement to keep distance and the recommendation to wear a face mask, the employer will be allowed to assume an increased risk of infection. In this case, a requirement that the employee has to undergo a Covid-19 test may be acceptable. This applies all the more to health care facilities, where the ordering of a test in cases of an increased risk of infection is usually part of the hygiene protocol.
Whether a termination of the employment relationship is permissible in the case of a refusal to submit to a requested test remains dependent on the individual case. In particular, the existence of good cause within the meaning of the German labour code is decisive for the validity of an extraordinary termination. In addition, the principle of last resort must always be observed with every termination of employment. Both in the case of the nursing home employee and in the case of the basketball player, the competent labour court will have to deal in particular with the question of whether, under the principle of last resort, milder means such as a warning notice or an unpaid leave of absence should have been given priority over termination of the employment relationship.
Whether and to what extent employers can take legal measures (up to and including ordinary or even extraordinary dismissal) in the event of violations of corona measures during leisure time can and should only be decided on a case-by-case basis as part of an overall assessment. It therefore remains to be seen what decision will be made in the above-mentioned cases and what initial guidance employers will thus receive on how to deal with private behaviour by 'corona sceptics'.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.