Legal situation in the area of life

• 1. Business, services and catering

  According to the current legal situation, there is no obligation to wear a face mask in the areas of business, services and catering. The restrictions to access for the unvaccinated have expired, too.

  However, operators of wholesale and retail businesses or other service providers (such as hotels, restaurants, fitness studios, etc.) can generally invoke their domestic authority to determine their own access requirements. So in general, operators can still require their clients to wear a face mask or furnish proof of vaccination, recovery or a negative coronavirus test result, irrespective of any legal obligations. However, domestic authority is restricted by the discrimination ban of the General Equal Treatment Act (AGG).

  This means that people who are unable to wear a face mask due to a disability as defined in the AGG, might be indirectly discriminated against by a ban on access without any exceptions. Thus, general access bans for people who are not vaccinated for medical reasons, might constitute indirect discrimination on grounds of age, disability or gender for children, people with disabilities and – in individual cases – pregnant people.

  We cannot, however, provide a general statement on whether this applies, since it depends on the individual circumstances of each case. Restrictions to access serve as a means to protect other clients, the operator and staff, help to control the spread of coronavirus and prevent further infections. Therefore, it must be assessed in each individual case whether it is appropriate to turn a person away because he or she is not able to wear a face mask or is not vaccinated for medical reasons.

  All in all, the decision depends on the severity of burdens and constraints for the person affected that have to be weighed against the social concerns while taking account of the current pandemic situation. In the current situation, where overall infection rates seem to be under control, general bans on access are harder to justify than in the presence of rising rates of infection.

  In the case of a worsening pandemic situation and rising infection rates, the testing obligation for unvaccinated people, in particular, is generally not considered to be a severe restriction. This is because the measure is no absolute exclusion but still allows access when presenting a negative test result – albeit under less favourable conditions.

  If in a specific case, the ban on access is not objectively justified and disproportionate, those affected can bring a number of claims for violation of the General Equal Treatment Act. For instance, those affected have the right to demand that the person responsible refrain from future discrimination (Section 21 (1) of the AGG). In addition, claims for damages and/or monetary compensation may be considered (Section 21 (2) of the AGG). These claims must be asserted against the business or service provider in writing within two months of becoming aware of the discrimination.

  These rights only exist, however, if the denial of access cannot be justified under the conditions described above.

  Only the competent courts can come to a binding decision on whether an operator’s policy of maintaining mask-wearing, vaccination or testing obligations constitutes a violation of the AGG.

• 2. Employment and training

  According to general occupational health and safety regulations, after the legal requirements on protection against infection have expired, it is the employer’s responsibility now to autonomously determine what measures to take to ensure protection against infection in the workplace.

  In this context, all employers are required under health and safety at work law to prepare a risk assessment and on this basis, stipulate, implement and – if necessary – adapt their corporate hygiene protocol to include appropriate measures to ensure protection against infection in the workplace.

  In general, employers not only have a duty of care towards their staff, but they also have the right to issue instructions. Therefore, they may also require employees to wear a face mask in the workplace as part of their hygiene and safety protocol (see decision of the Higher Labour Court in Cologne of 12 April 2021, ref. no.: 2 SaGa 1/21). This fact in itself does not amount to discrimination, especially for people who do not have a compelling medical reason for not wearing a face mask and only do not want to wear one because of their personal conviction.

  If there are medical reasons, they have to be set out in a serious, precise and reasonable manner. There may, for instance, be doubts regarding a claimed medical impairment, if an employee rejects the employer’s offer of an occupational health check-up and refers to the face mask as a “snot rag” (cf. decision of the Cologne Labour Court, 17 June 2021, 12 Ca 450/21). In the case mentioned, a service technician who worked in the field refused to wear a face mask when working with clients. After a reprimand showed no success, the employer terminated his working contract without notice. The Labour Court in Cologne considered the termination to be lawful. In its reasoning, the court explained that the medical note presented by the employee did not justify his persistent violations of the obligations laid down in the employment contract. The medical note had been neither recent nor sufficiently precise.
  
  However, employers must take account of the concerns of persons with disabilities as well as applicable law – particularly the General Equal Treatment Act. The requirement to wear a face mask at work may have an indirectly discriminatory effect on people with respiratory diseases due to a disability or other relevant disabilities (such as epilepsy or psychological impairments).
  
  It must be noted, however, that the AGG’s protection against discrimination does have its limits. For instance, indirect discrimination may be justified if it serves a legitimate goal and is necessary as well as appropriate. One example of such a goal is to ensure the protection of other employees from infection and to control the spread of coronavirus by preventing new infections. The question whether a mask-wearing obligation without exemptions is necessary and appropriate must be assessed on the merits of each case.

  For this, the employers’ interests, i.e. the clients’ demands and the protection of other employees on the one hand must be weighed against the employees’ right not to be discriminated against because of a disability on the other. In the current situation, where overall infection rates seem to be under control, instructions to wear a face mask and testing obligations are harder to justify than in the presence of rising rates of infection.

  In addition, it has to be considered that employers are obligated under the AGG to provide what is known as reasonable accommodation for employees with disabilities. That means that appropriate and necessary measures must be taken in each individual case to ensure that the job in question can be performed regardless of the disability, unless those measures would entail a disproportionate burden on the employer (Federal Labour Court, decision of 19 December 2013, ref. no.: 6 AZR190/12). Therefore, according to the Federal Labour Court, if an employer refuses to provide reasonable accommodation for staff with disabilities, this may be considered discrimination on grounds of a disability (Federal Labour Court, decision of 21 April 2016, ref. no.: 8 AZR 402/14).

  This applies unless it would lead to a disproportionate burden on the employer. To decide what – if any – kind of accommodation is appropriate and at which point the burden on an employer is disproportionate is the responsibility of the competent courts. Only if employers have exhausted all means of reasonable accommodation at their disposal and the working conditions are still inappropriate for staff with disabilities may they release the respective employees from work.

  For instance, in a case decided before the Labour Court in Cottbus, a dismissal was considered lawful since due to an exemption from the mask-wearing obligation and the refusal of the employee to wear a mask, the person could not be employed at any other position in the company (Cottbus Labour Court, decision of 17 June 2021 - 11 Ca 10390/20, not final). Before that, however, the employer had undertaken numerous efforts to enable the employee to work with a face mask, including the provision of a selection of masks to try out and train with and the offer of additional breaks.

  If in a specific case the requirement to wear a face mask is not objectively justified, those affected can assert claims for damages and/or compensation against their employer for violation of the AGG (Section 15 of the AGG). It is vital to bear in mind that any claims must be asserted to the employer in writing within two months (Section 15 (4) of the AGG). They can be brought before a labour court up to a maximum of three months after having been asserted in writing to the employer (section 61 b (1) of the Labour Court Act). If either of these deadlines is missed, claims are no longer enforceable. The deadline starts to run when those affected become aware of the discrimination.

  If the discrimination is permanent, the deadline only starts to run from the moment of the most recent incident. Please note, however, that these rights only exist if the obligation to wear a face mask cannot be justified under the conditions described above. Furthermore, you can lodge a complaint with the complaints board set up under the AGG (cf. Section 13 of the AGG) within your company. Lodging a complaint with a complaints board in accordance with the AGG is not subject to any time limits. The complaints board is obligated to examine the complaint and report the result to the employer. If there is a works council, you can also turn to this body for support. Another option for staff with disabilities is to contact the competent integration office or the representative council for employees with disabilities at your company or department.

  Click here for an overview of integration and inclusion offices in Germany.

• 3. Healthcare system (doctor’s surgery, hospital, long-term care facility)

  In doctors’ surgeries, hospitals and long-term care facilities, too, the legal mask-wearing, vaccination and testing obligations no longer apply.

  Although doctors can go beyond the requirements under public law by setting out their own 3G or 2G conditions for treatment in their surgery based on their domestic authority, this authority only applies in compliance with medical professional law.

  It has not yet been definitively clarified by the courts whether the General Equal Treatment Act (AGG) also applies to the uptake of healthcare services (medical treatment contracts). This is because the AGG’s protection from discrimination based on age, gender or a disability as part of private business transactions only covers cases of so-called bulk business transactions or comparable legal transactions (section 19 (1) no. 1 of the AGG). Whether medical treatment contracts (i.e. doctor’s visits, hospital stays, etc.) can be considered bulk business is legally disputed and has yet to be definitively clarified by the courts.

  In this context, too, it has to be assessed in each individual case whether requiring a patient to wear a face mask might amount to indirect discrimination under the AGG because of a disability. For any assumption of discrimination on account of gender, age or disability to be made where patients who are neither vaccinated nor recovered are not treated at all or only on condition of a negative coronavirus test result, the persons affected must first prove that they cannot receive the coronavirus vaccination due to compelling medical reasons. If a mask-wearing and/or testing obligation seems appropriate when taking into account the situation on the ground as well as the interests of everyone involved, it is very likely that the incident does not amount to indirect discrimination. Depending on the current situation and infection rates, different decisions will be reached in this respect.

  Objective reasons that may justify a mask-wearing obligation without exemptions include, for instance, the protection of other patients as well as of the doctor and staff – especially if they themselves belong to a risk group – or the need to maintain medical care.

  In emergencies or if a patient is in urgent need of medical attention, it is never possible to refuse treatment on grounds of a mask-wearing and/or testing obligation (section 7 (2) sentence 2 (Model) Professional Code for Physicians in Germany by the German Medical Association). Furthermore, statutory health insurance physicians are obligated under section 95 (3) sentence 1 of Book V of the German Social Code (SGB V) to provide medical care to all statutory health insurance holders. Treatment may only be refused in specific justified cases (section 13 (7) sentence 3 of the Federal Collective Agreement for Medical Practitioners). In case there are no alternative treatment options available (e.g. in rural areas), the strict imposition of mask-wearing and testing obligations without exemptions may also lead to inappropriate outcomes.

  If in a concrete case, the ban on access is not objectively justified and disproportionate, those affected can bring a number of claims for violation of the General Equal Treatment Act. For instance, those affected have the right to demand that the person responsible refrain from future discrimination (Section 21 (1) of the AGG). In addition, claims for damages and/or financial compensation may be considered (Section 21 (2) of the AGG). These claims must be asserted against the business or service provider in writing within two months of becoming aware of the discrimination.

  These rights only exist, however, if the denial of access cannot be justified under the conditions described above.

  Only the competent courts can come to a binding decision on whether an operator’s policy of maintaining mask-wearing, vaccination or testing obligations constitutes a violation of the AGG.