Do employees retain their wage entitlement if they cannot work due to exemption from the mask requirement?

Thursday, 24.02.2022

The case:

The employer had requested an employee to put on a mouth/nose mask. The employee refused and sent the defendant’s company doctor a “medical certificate for mask exemption”.

In it, the exemption from the mask requirement was justified as follows:
“After anamnesis and examination in my practice, I hereby state: the above-mentioned patient is exempt from wearing a mechanical mouth-nose covering within the scope of the Corona prescriptions due to an underlying illness, because this is contraindicated for him. There is a psychotrauma from childhood in the 7th year of life. The mask causes retraumatization in the context of PTSD.”

The employee suggested that he be employed at another location with a single office with a side entrance and his own restroom facilities. The employer did not follow suit, however, and found that no workplace was currently available where employment without wearing a mouth-to-nose mask was possible. It announced that it would not continue to pay wages. The employee claimed that the defendant did not assign him a workstation that was suitable for him; he could have worked in a single office or from a home office.

Instruction to wear a mask lawful

The Hamburg Labor Court initially awarded the plaintiff compensation for default of acceptance. However, this ruling has now been overturned by the Hamburg Higher Labor Court. The employer’s instruction to wear a mask had been lawful. The plaintiff had not offered the work performance specified in this way to the defendant in accordance with § 294 BGB. The employer was only obligated to open up a work opportunity for the employee in the first place, to continuously plan the work process and to provide the work equipment. However, it is not obligated to redefine the duty to work, which has already been concretized by the instruction, according to the wishes or concerns of the employee.
Accordingly, the employer did not default in accepting the work performance. Therefore, the employee is not entitled to default of acceptance wages.

Practical tip

Employers should nevertheless take care to assign employees to work in accordance with the contract in such cases if possible. Otherwise claims for damages due to the injury of obligations from § 81 exp. 4 p. 1 No. 1, No. 4 and/or No. 5 SGB IX aF and/or § 164 exp. 4 p. 1 No. 1, No. 4 and/or No. 5 SGB IX could be justified. Such damages were not claimed in the legal dispute described.

LAG Hamburg, Judgment of October 13, 2021 – 7 Sa 23/21