Since the beginning of the pandemic, everyone knows the difference between surgical masks and FFP2 or FFP3 masks. Most of us have also experienced for ourselves that it is much easier to breathe under a surgical mask. This was certainly also in mind in a decision by the Baden-Württemberg Regional Labour Court in the spring, judgement of 23.3.2022, file number 2 Sa 31/21. Here, a cleaner had sued for a higher hourly wage because he had to wear a surgical mask at work. However, the complaint has so far been unsuccessful.

Hardship allowance for “respiratory masks”

According to the applicable collective agreement for the building cleaning trade, there is an allowance on top of the usual salary of 10 per cent for work where a “respiratory mask” (“Atemschutzmaske”) is required. The cleaning company required its employees outside fixed workplaces to wear mouth-nose protection. As a cleaner, the plaintiff therefore had to keep the mask on throughout his working hours. A simple surgical mask was sufficient for this purpose. With the allowance, the plaintiff would have earned around EUR 200 more gross per month. The Regional Labour Court was to award this to him after the Labour Court had already rejected it.

Surgical mask not onerous enough for allowance

The labour courts had to deal with the question of whether a simple surgical mask was already a “respiratory mask”. The plaintiff argued that even such medical masks could cause headaches, dizziness and fatigue and would make work more difficult. A surgical mask was a respiratory mask for which the allowance was appropriate.

The labour courts have so far disagreed. On the one hand, they pointed out that, according to the standard Duden dictionary, respiratory masks serve to protect the wearer himself. This was not the case with loose-fitting surgical masks. Here, it is more about potentially protecting others from the wearer. In general, it is not particularly difficult to breathe under a surgical mask. The court also based its decision on a comparison with other hardships that are paid more under the collective agreement for the building cleaning trade. Wearing a protective suit with hood, overshoes, gloves and goggles is worth a 5 per cent surcharge under the collective agreement for example. If a filter mask or an air-supported respiratory system has to be worn at the same time, there is a total surcharge of 15 per cent. The court concluded from this that in order to receive the desired 10% surcharge, the plaintiffs work had to be as arduous as with a filter mask or an air-support ventilation system. However, this was not as arduous with a surgical mask.

Appeal admitted

Because of the special significance of the decision, the Regional Labour Court allowed the plaintiff to have his decision reviewed by Germany’s highest labour court. At the moment, however, it takes an average of seven months for the Federal Labour Court to reach a decision.

Individual case always decisive

The ruling concerns a specific collective agreement. If there are questions about other collective agreements or other regulations on the use of mouth-nose protection or other protective equipment, individual advice is necessary.

LAG Baden-Württemberg, judgement of 23.3.2022, case number 2 Sa 31 / 21