PCR test as a prerequisite for access to the workplace?
The coronavirus crisis poses enormous challenges for many companies. The relationship between employees and employers is also under considerable strain in some cases. In addition, many new questions have arisen that have come to the fore as a result of the current situation.
The Offenbach Labor Court was confronted with the question of whether an employer may deny its employee access to the company if the employee refuses to take a PCR test. The employee initiated summary proceedings in this regard.
Does the PCR test violate self-determination and physical integrity?
In the course of the coronavirus crisis, a works agreement was concluded at the company in question. It is not clear from the publications on the proceedings how this is specifically structured. In any case, the employer claims that employees are only to be allowed access to the company premises if they carry out a PCR test in accordance with the works agreement.
As an employee refused to take such a PCR test, the employer denied him access to the factory premises. Accordingly, only those who carry out such a PCR test can fulfill their work obligations. The employee concerned initiated summary proceedings against this lockout at the Offenbach Labor Court.
The excluded employee argued that the instruction to carry out the PCR test violated his right to self-determination and physical integrity. This instruction was not covered by the works agreement or the employer's right to issue instructions. The PCR test constitutes an invasive interference with physical integrity and is therefore disproportionate.
Court rejects the urgent appeal
The Offenbach Labor Court dismissed the employee's urgent application because, among other things, the employee did not provide evidence as to why an immediate decision was required. A particularly urgent interest in employment was not apparent. There was therefore no justified urgency.
The person concerned must therefore assert his employment claim in the main proceedings. The court's press release does not contain any statements on the content of the questions raised, in particular whether employers can demand a PCR test or whether such a test obligation can be made mandatory by a company agreement.
Consequences for practice
The proceedings focus on serious issues relating to the relationship between employers and employees and their mutual rights and obligations. There is considerable tension between the employer's interest in the functioning of its company and the protection of its employees and the individual rights of employees, in particular to self-determination and physical integrity. These issues have been the subject of controversial debate for months.
A tendency of the Offenbach Labor Court cannot be inferred from the press release. Only the fact that the court was not able to recognize an urgent interest in employment makes one sit up and take notice.
Employees who wish to avoid having to take a PCR test at the employer's request should therefore first make every effort to reach an amicable solution. If this is unsuccessful, the only remaining option is to take legal action in the main proceedings before the labor courts with all the associated uncertainties and risks.
