A flutist from the Bavarian State Opera is complaining. After refusing to undergo a PCR test, the opera stops paying her salary. The musician demands the withheld wages - and suffers a defeat before the Federal Labor Court.
Employers were also allowed to unilaterally order corona tests for employees. A flautist who refused this has no claim to her wages, as the Federal Labor Court (BAG) in Erfurt ruled. With a corresponding hygiene concept, companies would fulfill their duty of care under occupational safety law.
The plaintiff was a flutist at the Bavarian State Opera. For the 2020/2021 season, the State Opera took structural and various other measures to protect employees from Covid-19 diseases. According to the hygiene concept, the employees had to have a PCR test carried out at different intervals depending on the area. The tests were organized by the State Opera and were free of charge for the employees.
The flutist was told that without the tests she could not attend the rehearsals and performances. Still, she refused. She was therefore no longer employed and was not paid from the end of August to the end of October 2020. After that, the flautist presented PCR test results.
With her lawsuit she demanded the unpaid wages. The tests were disproportionate and there was no legal basis for them. She was unsuccessful in all instances. As justification, the BAG in the highest instance referred to the Occupational Health and Safety Act and the resulting duty of care of the employer. In order to comply with occupational safety and health, employers may also issue instructions to employees.
The BAG ruled that this also covered the instruction to carry out PCR tests. The tests were only one of several measures. The State Opera received medical advice on the entire hygiene concept. The "minimal intrusion into physical integrity" associated with the tests was also proportionate. Because of her "lack of willingness to perform", the flutist was not entitled to remuneration, the BAG decided.
