Guest contribution by Prof. Dr.Michael FuhlrottBAG: Bavaria's State Opera was allowed to order a mandatory PCR test stokkete - stock.adobe.comBavaria's State Opera was allowed to ask its employees to submit PCR tests, according to the BAG.A flutist who does not comply with this order therefore receives no wages.Michael Fuhlrott knows what follows from this decision.Bavaria's State Opera was allowed to ask its employees to submit PCR tests, according to the BAG.A flutist who does not comply with this order therefore receives no wages.Michael Fuhlrott knows what follows from this decision.The employer's right of direction allows employers to "determine the content, place and time of the work at their reasonable discretion" (§ 106 of the Industrial Code).Whether this right also includes the ordering of PCR tests in times of a pandemic has now had to be clarified by the Federal Labor Court (BAG) in a legal dispute (ruling of June 1st, 2022, Az.: 5 AZR 28/22).A flutist employed by the Bavarian State Opera complained that she refused the PCR tests ordered by the Bavarian State Opera.She saw this as an encroachment on her general right of personality and her physical integrity.The basis for the obligation to test was the operational hygiene concept introduced by the Bavarian State Opera in summer 2020, which went beyond the legal requirements and required employees to carry out PCR tests without cause.This could be done at the expense of the employer and during working hours.Alternatively, it was also possible to provide a corresponding certificate from a doctor of your choice.According to the operational hygiene concept, this measure wasbased on the fact that due to the nature of the job, it is not possible to wear mouth and nose covers and that the distances in orchestra operations cannot always be safely maintained.Because the orchestra pit is spatially limited, an expansion of the space to allow greater distances is simply not possible.When the refusing employee finally refused to carry out the tests in August 2020, the State Opera released her without pay.The special feature: The flutist's employment contract referred to the collective agreement for musicians in cultural orchestras (TVK).Its § 4 paragraph 2 contained a regulation that entitled the employer "if there is a reason" to have a medical examiner determine "whether the musician is able to work and free of contagious or disgusting diseases", whereby this power "is not used arbitrarily be made”.With her lawsuit, the flautist is now claiming back salary payments for the pro rata August, September and October 2020.After all, she was willing and able to work, she argued.The employer therefore has to pay her wages in accordance with the principles of default of acceptance (§§ 293 et ​​seq. of the German Civil Code (BGB)).The Bavarian State Opera, on the other hand, did not want to pay the flutist's gross monthly salary of EUR 8,351.86.She referred to health protection and her occupational safety obligations, also towards other employees, who demanded effective hygiene measures.Since it is not possible to wear masks, the strict obligation to test is appropriate.Munich Labor Court (judgment of March 24, 2021, Az.: 19 Ca 11406/20) and Munich State Labor Court (judgment of October 26, 2021, Az.: 9 Sa 332/21) convinced this argument.They agreed with the State Opera and dismissed the claim for payment.Because if the employee is not willing to perform the work in question for his employer under the contractual conditions, there is a lack of willingness on the part of the employee to perform.According to the reasoning of the Munich judges, the employer’s default of acceptance in the event of non-employment is then ruled out.An employer also has a significant interest in carrying out the tests, since he is obliged under both private and public law to protect the health of other employees.The obligation of the employer to protect his employees against dangers to life and health to the extent that the nature of the service allows follows from the duty to protect standardized in § 618 BGB.For this purpose, the employer must take the necessary measures in accordance with Section 3 of the Occupational Health and Safety Act (ArbSchG).The ordering of PCR tests is suitable for achieving this goal.The tests were also necessary.In addition to the tests, the Bavarian State Opera has also implemented the other protective measures provided for in the relevant SARS-CoV2 occupational safety rule.Since the activity as a flutist cannot be performed with a mask, a test is required.The plaintiff was also unsuccessful before the BAG, which now rejected the flutist's appeal.According to the court's press release, the instruction to test was lawful.Because the instructions based on the operational hygiene concept would have corresponded to reasonable discretion.The encroachment on physical integrity associated with carrying out the tests was minimal and therefore proportionate.The basic right to informational self-determination does not make the test order impermissible either, especially since a positive test result with regard to the reporting obligations under infection protection law and contact tracing will be known in the company anyway, according to the BAG.Since the employer's instruction to implement the company hygiene concept was lawful, the employer was entitled to assume that the employee was not willing to perform and to stop paying wages.The judgment is based solely on the employer's right of direction.According to the wording of the press release, the collective bargaining agreement on the performance of health examinations, which the lower court had still based on, was irrelevant.The decision is therefore a relief for employers when planning operational hygiene measures, which, according to the BAG, can be instructed unilaterally by the employer.Of course, these must be proportionate and an existing works council would have to be involved in accordance with Section 87 (1) No. 1, 7 of the Works Constitution Act (BetrVG).So the employer's scope is not unlimited.In addition: The decision was made on a situation in Corona weddings.Whether such measures would still be possible in view of the current pandemic and low number of infections would have to be checked in each case, taking the operational situation into account.Where there is contact with vulnerable groups, a corresponding order will certainly be possible.Where there is no particular risk potential, greater weight will have to be attached to the employee's personal interests when weighing up interests.However, should a new corona wave become apparent in autumn or monkeypox hit Germany even more severely, the current decision gives companies a handle and important guidelines as to which operational hygiene measures employers are allowed to take.In case of doubt, in favor of health protection and against individual interests - this is how the decision of the federal labor judges can be summarized (boldly and very briefly).The author Prof. Dr.Michael Fuhlrott is a specialist lawyer for employment law and a partner at FHM – Fuhlrott Hiéramente & from the Meden partnership of lawyers in Hamburg.BAG on mandatory PCR tests in the workplace: Pandemic trumps personal rightsIn: Legal Tribune Online, June 1, 2022, https://www.lto.de/persistent/a_id/48625/ (retrieved on: June 18, 2022)State lottery and casino administration, MunichSonepar Deutschland GmbH, DusseldorfADVANT Beiten, MunichGerman Pension Insurance Federation, BerlinSZA Schilling, Zutt & Anschütz, Frankfurt am Mainhkp legal, Frankfurt am MainSZA Schilling, Zutt & Anschütz, MannheimSZA Schilling, Zutt & Anschütz, Frankfurt am MainSZA Schilling, Zutt & Anschütz, Munich