Due to the corona pandemic, employers in Germany may order the wearing of medical face masks in their establishments if this is required within the scope of their hygiene concept (§ 2 Para. 2 of the German Corona Occupational Health and Safety Regulation (Corona-ArbSchV)). However, this can lead to conflicts with employees.
Various reasons for refusing to wear a mask at work
For example, employees may not be able to wear mouth-to-nose coverings for medical reasons. Other employees might also refuse to wear the mask for non-medical reasons.
Employees’ reason for non-compliance with the mask mandate has a significant impact on the entitlement to remuneration and the continuation of the employment relationship.
Not wearing a mask for medical reasons
If an employee is inhibited from wearing an appropriate mask for medical reasons, this constitutes a case of incapacity to work due to illness. The employee then retains his/her entitlement to remuneration in accordance with general tenets under the Continued Remuneration Act (EFZG) vis-à-vis the employer for a period of up to six weeks (§ 3 EFZG). It shall be noted
- that the employee bears the burden of proof and
- the certificate must indicate that the employee is incapable of working.
Termination for personal reasons possible
If the employee is permanently unable to work, dismissal for personal reasons is possible. In this case, the termination options are based on the regulations for a termination due to illness.
When weighing the interests, it must be taken into account that the Corona Occupational Health and Safety Regulation was only valid until March 19, 2022. However, the ordinance to wear a medical mask can probably also be based on the right to issue instructions under trade regulations (§ 106 GewO). Therefore, the termination remains a possibility even after the expiry of the regulation.
Not wearing a mask for other reasons
Insofar as employees refuse to wear a medical mask for non-medical reasons, they are not incapable of working due to illness. They are not entitled to continued payment of wages if they do not perform their work on account of the mask mandate.
Termination based on conduct possible
Such employees also expose themselves to the risk of termination for conduct. The employee violates the employer’s instruction to wear an appropriate mask. The violation also puts other employees at risk.
In principle, a warning is, however, required before a notice of termination is issued. If the employee does not comply with the obligation to wear a mask despite a relevant warning, there are substantial reasons for the effective termination of an employee.
Advice on law regarding the coronavirus and employment
Even if the Corona Occupational Health and Safety Regulation was initially only valid until 19 March 2022, the problem concerning hygiene concepts will still occupy the working world. We will help you with all questions concerning German employment law.