The Berlin-Brandenburg State Labor Court had to deal with whether the employer’s right to issue instructions also includes the ordering of a mask requirement and how a certificate must be provided with which employees can be exempted from the obligation to wear a mask. (LAG Berlin-Brandenburg, judgment of April 26, 2022 – 7 Sa 106/22)
had war happened?
The employee and later plaintiff did not agree with his employer’s mandatory mask requirement. The obligation applied within the company building in public areas and wherever the minimum distance of 1.5 m could not be maintained.
Before his medical certificate, the plaintiff requested that he should not wear a mask from a medical point of view. The employer then no longer employed the plaintiff and subsequently suspended the wage payments.
There are currently no legal regulations on the obligation to wear masks.
In the first instance, the plaintiff lost before the Neuruppin Labor Court. He appealed against the verdict at the Berlin-Brandenburg State Labor Court.
The decision of the regional labor court Berlin-Brandenburg
The Regional Labor Court (LAG) confirmed the decision of the Neuruppin Labor Court and dismissed the appeal.
The employer’s instruction to his employees in certain situations and possibly to wear a mouth and nose cover is covered by the right of management.
That Management right according to § 106 GewO enables the employer to determine the content, place and time of the work performance at its reasonable discretion, provided that these working conditions are not stipulated by an employment contract, provisions of a company agreement, an applicable collective agreement or statutory provisions. This also includes instructions from the employer to employees on occupational safety.
The plaintiff could also not successfully apply to a Brandenburg Regulation, due to persons who are unable or reasonable to use a mouth and nose cover due to a disability or health reasons, are exempt from the obligation to wear a mask. The certificates submitted had only certified to the plaintiff that it was unreasonable for him to wear a mask from a family doctor’s point of view and for medical reasons. The regulation only allowed the exception for health reasons, which is why the certificate was not sufficient to exempt the plaintiff from the obligation. The LAG thus dismissed the appeal: The plaintiff had only offered his work without a mask and thus not as requested by the employer.
If the employee does not offer his service as requested by the employer, even if it is “just” because he refuses to wear a mask, the employer no longer has to use him and stop paying wages.
Exemptions from the obligation for health reasons are possiblehowever, a certificate in the form of an ordinary certificate of incapacity for work is not sufficient for this. Those affected must explain in a comprehensible manner why they cannot comply with the obligations arising from their employer’s order. If the employee throws the masks provided in the trash in front of colleagues – as actually happened here – and clearly expresses his general rejection of the duty, the proof WILL rarely be successful. In such a case, the hurdles for a substantiated presentation are significantly higher.