Covid-19 tests in companies: When are employers required to test employees and when are they allowed to?
In the decision of 22 March 2021 by the federal government and the federal states on the containment of the coronavirus pandemic, Chancellor Merkel and the heads of government of the federal states recognised the need for a testing strategy in all companies in view of the rise in the number of infections. Companies should first be encouraged, initially on the basis of a purely voluntary commitment by businesses, to “offer” a Covid-19 test to all employees not working from home.
As the federal government thought that businesses did not sufficiently meet their commitment, on Tuesday, 13 April 2021, the Cabinet laid down its testing strategy in the “Second Regulation amending the SARS-CoV-2 Occupational Health & Safety Regulation”. Since 20 April 2021, employers have had to offer employees one Covid-19 test per week. Two weekly Covid-19 tests have only been necessary for particular groups of workers with a higher job-related risk of infection. With the “Third Regulation amending the SARS-CoV-2 Occupational Health & Safety Regulation” dated 21 April 2021, which came into force on 23 April 2021, the testing strategy has been modified so that now all employees must be offered a Covid-19 test at least twice a week.
The adopted amendments of the SARS-CoV-2 Occupational Health & Safety Regulation raise two key issues:
(1) To what extent are employers obliged to carry out Covid-19 tests?
(2) Can employers require their employees to take a Covid-19 test?
I. Are employers required to test for Covid-19?
1.1 Obligation to offer a test instead of obligation to test at federal level
At federal level, employers are not yet obliged to have their employees tested for Covid-19. Employers are only obliged to offer Covid-19 tests. Employees are free to accept or reject this offer. The stated aim of the legislator is to identify asymptomatic cases at an early stage in companies and to quickly break transmission chains.
1.2 What does the Occupational Health & Safety Regulation specify?
Specifically, from 23 April 2021, under section 5(1) SARS-CoV-2 Occupational Health & Safety Regulation there is an obligation for all establishments, institutions and administrative bodies in Germany whose employees do not work from home to offer each employee a Covid-19 test at least twice a week. The previous rule for special groups of employees in section 5(2) SARS-CoV-2 Occupational Health & Safety Regulation was deleted.
1.3 What Covid-19 test should be offered?
The Regulation does not specify the type of Covid-19 test. According to the explanatory memorandum to the draft bill, PCR tests or rapid antigen tests can be offered for professional or self-testing.
1.4 Who pays for the tests?
Unlike some rules of the federal states (see point I.2.), section 5 of the SARS-CoV-2 Occupational Health & Safety Regulation does not lay down any rules on the allocation of costs. However, it follows from the explanatory memorandum of the draft bill that the costs must be covered by the employer.
1.5 What record-keeping obligations do employers have?
Section 5(2) of the SARS-CoV-2 Occupational Health & Safety Regulation states that employers must keep proof of procurement of Covid-19 tests or agreements with third parties on testing for four weeks. This obligation to keep records is intended to enable the health and safety authorities and accident insurers’ inspectors to check whether tests have been offered. However, it is not necessary to document how many workers have accepted the offer of Covid-19 tests.
1.6 Can Covid-19 tests replace existing occupational health and safety measures?
No. According to the intention of the legislator, these compulsory offers of a test should be an additional measure for occupational infection control alongside existing occupational health and safety measures. Covid-19 tests cannot therefore replace existing infection control measures such as compulsory mask-wearing or physical distancing.
2. (Partial) Covid-19 test obligation at state level
In addition to the new SARS-CoV-2 Occupational Health & Safety Regulation, different rules on Covid-19 testing in companies already exist at federal state level, such as in Berlin, Saxony, Bavaria and North Rhine-Westphalia. Some of these state rules go beyond the requirements of the new Occupational Health & Safety Regulation:
2.1 Offering Covid-19 tests
Based on the federal government/federal states’ decision of 22 March 2021, some states have obliged employers to offer a Covid-19 test to certain groups of workers. For example, Saxony has decided that employers must submit an “offer” once a week of a free Covid-19 test to all workers present in the workplace (section 3a(1) Saxony Coronavirus Control Regulation). The state of Berlin requires two free Covid-19 tests a week in the form of a point of care (PoC) antigen test (section 6a(1) 2nd Infection Control Regulation).
2.2 Covid-19 test obligation for workers
Some states have also introduced compulsory Covid-19 testing for certain industries or economic sectors. For example, workers in Saxony must accept their employer’s offer of a Covid-19 test if they have “direct” customer contact (section 3a (2) Saxony Coronavirus Control Regulation). In Berlin, however, employees must accept the offer only if they have “physical” contact with customers or third parties (section 6a(2) sentence 2, 2nd Infection Control Measures Regulation). In other states such as Bavaria and Hesse, compulsory testing applies only to staff in care homes, facilities for people with disabilities and homes for the elderly (section 9(2)(4) and (3) 12th Bavarian Infection Control Measures Regulation and section 1b(2) and section 1c Hesse Coronavirus Institutional Protection Regulation).
II. Can employers force employees to take a Covid-19 test?
While the legislature seemed to see a reason to make it compulsory for employers to offer tests, they do not currently appear to wish to oblige employees to accept such tests. The question therefore arises whether an employer may require its employees to take a Covid-19 test which it offers.
1. (At present) No right to impose Covid-19 tests without a reason
In principle, it is conceivable that an employer could instruct employees to take a Covid test before starting work. However, despite the new SARS-CoV-2 Occupational Health & Safety Regulation, such instructions will probably only be permissible in exceptional cases. Under section 106 sentence 1 Industrial Code in conjunction with section 315 Civil Code, the employer’s instruction to take a test is legally valid only if it is reasonable. The instruction is only reasonable if the employer’s interests in the employee taking a Covid-19 test outweigh the employee’s interests in not taking one. The circumstances of the individual case are always relevant.
The employer should take account of the fact that, in accordance with the principles of risk prevention and minimisation (section 4(1) Occupational Health & Safety Act), the employer must organise work in such a way as to avoid as far as possible any risk to life and health. Any remaining hazards must be minimised. The employer can fulfil this duty of protection in a particularly effective way if it is aware of a possible Covid-19 infection among its employees. At the same time, employees are also obliged to ensure, as far as possible, the health and safety of third parties (i.e. colleagues and external third parties) (section 15 (1) Occupational Health & Safety Act).
However, these employers’ interests in protection are in conflict with important fundamentally protected interests of employees, namely the general right to self-determination and the right to physical integrity.
There is therefore no general right for the employer to order Covid-19 tests for everyone without a specific reason, at least as long as there is no corresponding statutory provision. The new SARS-CoV-2 Occupational Health & Safety Regulation precisely does not stipulate a test obligation or right to test on the part of the employer. Employers’ interests do not per se prevail. However, the balancing of interests to be carried out may be in favour of the employer in individual cases, at least if there are specific indications that there is a suspicion of infection. This may be the case, in particular, when a worker (in close relation to time) shows typical symptoms of the disease, has tested positive for Covid-19 or has returned from a risk area. If necessary, the establishment of an employer’s protection plan for certain working situations (for example, work which must be carried out in a restricted space and without alternatives) may also be sufficient justification for ordering testing without any specific suspicion of illness.
2. Covid-19 tests by company agreement
If an employer wishes to establish a testing obligation for its employees, for example due to a specifically developed protection strategy, the right of any existing works council to co-determination must be respected (section 87(1)(1) and (7) Company Constitution Act).
It has not yet been clarified by the courts whether a company agreement can be a legal basis for Covid-19 tests without a specific reason, in other words whether a company agreement justifies an ordered Covid-19 test in any case. This was the question that Offenbach Labour Court had to deal with. In its decision of 4 February 2021 (ref. 4 Ga 1/21), it dismissed the emergency petition of an employee who wished to start working without a rapid Covid-19 test (with no specific reason), even though a test was required by the company agreement in force there. According to the decision of Offenbach Labour Court, currently available as a press release only, there is no urgent need for an immediate decision “among other things”. It is not clear from the press release whether the Labour Court considered the company agreement in question to be valid. A decision by the appellate court is still pending.
In this context, however, account will have to be taken of the fact that, under section 75(1) Company Constitution Act, the employer and works council are also bound by law and equity (and indirectly also by fundamental rights). An obligation to test workers without a specific reason could therefore be effectively agreed only if the employer and works council conclude, on the basis of a balancing of interests, that a Covid-19 test must be carried out before certain work is done, in particular because adequate protective measures cannot be taken by other means. If the employer and the works council intend to establish compulsory Covid-19 testing, ideally attention should be paid to documenting the balancing of interests carried out in the company agreement itself.
Making it compulsory for employers to offer tests without obliging employees to take a test will not really help with infection control. The legislators in certain states are thus going a step further than the federal government. Effective pandemic control in companies therefore remains the job of the employer and works council, which, at least by agreeing on a detailed testing strategy, can more actively prevent the transmission of infections in the company than can be done unilaterally by companies.
Any questions? Please contact: Dr Marco Tucci or Dr Michael Wilhelm Weber
Practice group: Employment & Pensions