Aggravation allowance for wearing a simple surgical mask
Employers do not have to pay their employees a collectively agreed hardship allowance if they are required to wear a simple surgical mask. This was decided by the Stuttgart Regional Labor Court in a ruling on March 23, 2022 (2 Sa 31/21). In the specific case, the employee of a glass and building cleaning company had sued for several hundred euros in aggravation pay. An appeal to the Federal Labor Court is possible.
An employee of a glass and building cleaning company since 1992 sued his employer for payment of several hundred euros in hardship allowance. However, the Regional Labor Court rejected the claim - as had the Stuttgart Labor Court in the previous instance. Wearing a simple surgical mask did not constitute such an aggravation that would justify a ten percent aggravation allowance.
Glass and building cleaner demands hardship allowance for wearing a surgical mask
In this specific case, a glass and building cleaner was deployed by his employer to provide services at customer properties. In an email dated May 20, 2020, a customer informed him that coronavirus protection measures were to be applied at his location. This included - in addition to safety distances of two meters - regular hand washing and a ban on more than one person in elevators and smoking cabins, as well as the obligation to wear a face mask throughout the building. As a result, the plaintiff wore a face mask in the customer's buildings from May 25, 2020, as instructed by the customer. In addition, the company's site manager had requested that a medical mask be worn during working hours. This was made available to the employees. The employee later stated that the masks were to be regarded as respiratory masks within the meaning of the collective bargaining standard. Wearing medical masks could also lead to health restrictions. Therefore, the employee was entitled to a hardship allowance from the time the mask was ordered to be worn.
Lawsuit dismissed: Mouth and nose protection is not a respirator according to the collective bargaining standard
The plaintiff demanded an additional gross hardship allowance of between EUR 73.33 and EUR 242.68 per month for the months of June to December 2020. The company requested that the claim be dismissed. According to the defendant, while a respiratory protection mask protects against pollutants from the ambient air within the meaning of the collective bargaining standard, the surgical mask to be worn on the premises protects third parties above all against possible virus-laden aerosols from the wearer. Ultimately, the Regional Labor Court in Stuttgart rejected the claim - as had the Stuttgart Labor Court in the previous instance. The plaintiff is therefore not entitled to payment of a collectively agreed aggravation allowance. The judges based their decision on the fact that, according to the wording of the collective bargaining standard, a face mask is not a respiratory protection mask within the meaning of Section 10 Clause 1.2 RTV. This difference can also be seen from the meaning of the words. According to the definitions in various dictionaries, respiratory masks are used to protect against toxic vapors and dust particles caused by work. Medical masks protect the people present from the possible infection of a disease by the wearer of the mask. Mouth and nose protection therefore does not meet the standards of a respiratory protection mask within the meaning of the collective agreement standard.
Working with every respirator is not subject to a surcharge
Furthermore, the overall context of the collective agreement shows that not all work with a respirator mask justifies a supplement. Pursuant to Section 10 Clause 1.2 RTV, this only applies to work where the respirator is part of the employee's personal protective equipment. Supplements are only to be paid if there are difficulties in connection with wearing personal protective equipment, working in special rooms and facilities and in the event of an extension of working hours. A rather loose-fitting surgical mask, on the other hand, does not justify a hardship allowance.
An appeal to the Federal Labor Court is possible.
