Employers may require their employees to undergo corona tests as part of a company hygiene concept. If employees do not comply, they can be refused both employment and salary payments, as the Federal Labor Court (BAG) ruled on Wednesday (AZ: 9 Sa 332/21). The Erfurt judges thus dismissed the lawsuit filed by a flutist employed by the Bavarian State Opera.

At the beginning of the 2020/21 season, the State Opera took measures to protect employees from Covid-19 disease. For example, entrances and exits were reorganized to avoid contact. The employer also developed a company hygiene concept with the Technical University of Munich and the Klinikum Rechts der Isar, which also included a test strategy.

Depending on the risk group, employees were obliged to carry out a free PCR test at different intervals. As an orchestra musician, the plaintiff should submit a negative test at the beginning of the season and then every one to three weeks.

The flautist saw this as a disproportionate encroachment on her physical integrity and refused. Unreasonable mass tests are not permitted, she said. There is a risk of injuries in the nose and throat area. Wind instrument players in particular could be unable to work even with minor injuries.

The employer then refused the employment and stopped paying the salary from August to October 2020. Only then did the woman present negative PCR tests, but complained about the unilaterally determined corona tests.

However, the action taken by the employer was lawful in the opinion of the Federal Labor Court. Here, the Bavarian State Opera has developed a hygiene concept with scientific support in order to be able to maintain operations despite the pandemic situation and to protect the health of the employees. The minimal intervention in physical integrity with the corona tests is proportionate.