Is the violation of coronavirus protection regulations a reason for termination?

Is the violation of coronavirus protection regulations a reason for termination?

The coronavirus and how to deal with it are dividing opinion. While some demand and approve of more and more regulations and restrictions, others see these measures as pointless and inappropriate. Accordingly, they are calling for all restrictions to be removed.

Employers sit between these positions. Your position is exacerbated by the fact that you are at risk of criminal and civil liability if you do not implement the measures prescribed by the government correctly. In addition, you also have a social responsibility and a duty of care for your own employees. And as if that wasn't enough, the constant sword of Damocles hangs over you in the event of an infection.

Employees, in turn, are subject to the duty of consideration under Section 241 of the German Civil Code (BGB) towards colleagues and the employer, as well as the duty to follow the employer's instructions. But how far do the duty of consideration and the right to issue instructions go?

Corona protection regulations in the operational area

A distinction must first be made as to whether the employee is acting within or outside the company. Conduct in the private sphere may also have an impact on the employment relationship if certain conditions are met. However, far stricter obligations apply in the company and during working hours.

In the workplace, employees must comply with the rules laid down by their employer, whether they consider them sensible or not. In addition to the obligation to show consideration for colleagues who may be particularly worthy of protection due to belonging to a risk group, the employer's right to issue instructions also applies.

If the employee breaches these obligations, they can be given a warning by the employer. In particularly serious cases, this may also result in ordinary or even extraordinary dismissal. This would be the case, for example, if an employee who doubts the existence or danger of the coronavirus deliberately coughs or sneezes on another employee. Even if this does not result in an infection, such reckless behavior in the workplace justifies termination without notice.

However, if there is only a minor violation, for example because an employee has forgotten to put on a mask when going to the toilet due to negligence, dismissal without notice would overshoot the mark. In such cases, a warning should be issued at most.

Corona protection regulations in the private sector

However, the assessment becomes more difficult when it comes to the employee's conduct in the private sphere. In principle, employees are free to organize their private lives as they wish. Offenses in the private sphere also have no effect on the employment relationship. However, the situation is different if the conduct in the private sphere has an impact on the workplace or if a connection to the employer is established, for example by wearing work clothes.

If an employee takes part in a demonstration in work clothes, this can regularly have consequences under employment law. The situation is different, however, if the employee does so in their private clothing.

Especially in times of the corona crisis, this is causing renewed discussion. Voices are being raised demanding that so-called "corona deniers" can also be prosecuted under employment law (up to and including dismissal without notice) if they take part in a corresponding demonstration. The same should be possible if they persistently violate the measures from the state ordinances (such as the obligation to wear masks at work) in the private sphere. This is contradicted by more moderate voices, which point to the existing separation of work and private life. There have not yet been any clear rulings from the courts regarding the current coronavirus situation.

Borderline case at Osnabrück Labor Court

A borderline case ended up before the labor court in Osnabrück. In March 2020, after the lockdown was imposed, an employee published a picture with the caption "Quarantine with me", in which he was sitting on the floor with 5 other people and playing cards without distance. No work clothes or other references to his workplace were visible in the picture. Nevertheless, his employer dismissed him without notice.

However, a decision on the merits was not reached, as the parties ultimately agreed on a settlement. However, the case shows that difficult questions of demarcation can arise. The question arises as to the extent to which conclusions can be drawn from the employee's behavior in the private sphere as to whether they will respect and comply with the infection protection regulations in the workplace.

The most important safety regulations

In addition to the so-called AHA rules, there is an extensive regulatory system of state ordinances issued on the basis of the Infection Protection Act. In addition, employers are obliged under Sections 3 and 5 (1) of the Occupational Health and Safety Act to determine the risk to their employees in the workplace and to take appropriate countermeasures.

In particular, he must take into account the SARS-CoV Occupational Safety Standard (C-ASS) of April 2020 and the SARS-CoV-2 Occupational Safety Rule (C-ASR) of August 2020.

According to Section 15 of the Occupational Health and Safety Act, employees are obliged to follow the employer's instructions. They also have the right to make suggestions to the employer. Whether and to what extent the employer takes these into account, however, is solely up to the employer.

Proceed with consideration and a sense of proportion

Employers should proceed with a sense of proportion and not be too hasty in terminating employment without notice. Employees, on the other hand, should urgently comply with the company's infection protection measures and behave in accordance with their duty of consideration towards their employer.

If disagreements nevertheless arise, both sides are strongly advised to seek legal advice from an experienced employment lawyer, especially in view of the complexity of the situation.

Do you have questions about coronavirus protection regulations in the workplace or do you have a dispute? Our lawyers are at your side and can advise or represent you competently. Call us now or write to us using the contact form:

06173 - 318 170

Rudolf-Diesel-Str. 5, 65760 Eschborn near Frankfurt

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