Certificate requirement in the workplace

Due to the Covid-19 pandemic and the newly introduced obligation to provide a certificate inside restaurants, cultural and leisure facilities and at indoor events on September 13th 2021, it is unclear as to whether and how employees are obliged to provide a certificate. What is clear is that the employer is allowed to demand a Covid certificate from his employees in connection with the duty of care and in context of protective measures. However, several factors need to be considered when enforcing the obligation to provide a certificate in the workplace. For example, it is more difficult to insist on a certificate requirement if employees work in a single office or there is minimal contact between employees.

For employees working in a restaurant, gym or museum it is not mandatory to provide a certificate either. However, the employer may demand a Covid certificate as part of his duty of care. Employers may check whether their employees provide a certificate if this serves to determine appropriate protective measures or to implement the testing concept. This can be the case if employees must work indoors in confined spaces, but not if the work outdoors. Employees must be consulted on the use of the certificate and the measures derived from it and these must be documented in writing. It is important that there is no discrimination between vaccinated and recovered and unvaccinated employees.

If an employer requires its employees to undergo a test, he must bear the cost incurred of any test. The federal government only covers test costs if tests are conducted as part of a company’s repetitive testing scheme. If the employer provides for differentiated measures for persons without a certificate, such as waring masks or working from their home office, the employer doesn’t have to bear the costs of testing.

If an employer dismisses its employees if they do not obey the protective measures, the consequences are unclear. The court could find in a specific case that the termination of the employment contract was wrongful. This does not chance the fact, that the notice of termination given is legally valid. Even in the case of a wrongful termination, the employment relationship is terminated. In the event of wrongful terminations, the employees are entitled to compensation. However, it is recommended that milder remedies be considered before issuing a notice of termination.

Finally, it should be mentioned that the threat of compulsory vaccination must be assessed in each specific case and depends on the individual circumstances. A compulsory vaccination can only be permissible if there are some concrete, relatively high risks to the health of employees or third parties. If the health of employees or third parties can be guaranteed by milder protective measures, compulsory vaccination should not be allowed.