A flutist from Bavaria sets the precedent – it’s about employers’ rights to issue instructions in the corona pandemic. A landmark ruling could affect thousands of workers.

A flutist from the Bavarian State Opera fought her way through all court instances with her resistance to a corona test imposed by her employer:

Today, Germany’s highest labor judge in Erfurt is to decide whether employers can prescribe corona tests for their employees. Legally, it is about the employer’s right to issue instructions and the consequences of this. Another corona dispute ends up before the Federal Labor Court.

It is unclear whether the federal labor judges will base their decision on a collective agreement for orchestra musicians, like the lower courts in Munich, or whether they will make a fundamental judgment. According to experts, this would affect tens of thousands of workers if the number of corona infections in Germany increased drastically again in autumn. “A fundamental judgment can provide crucial information on how to weigh up data protection and health protection for the next wave of infections,” says Gregor Thüsing, a professor of labor law in Bonn.

No work without a test

The orchestra musician refused, as required by her employer, to complete a PCR test at the start of the 2020/21 season. The hygiene concept of the Munich State Opera stipulated that all employees be tested free of charge when they start work. Otherwise they should be excluded from rehearsals and performances. The employer reacted promptly to the flautist’s refusal to take the test – no work and therefore no salary were the consequence.

No government guidelines yet

The case takes place in a relatively early phase of the corona pandemic, in August 2020, when many regulations and ordinances were still in the making. A state-ordered obligation to test unvaccinated employees outside of hospitals and care facilities only existed from November 2021 to March 2022. The Bavarian State Opera – like many other employers in Germany – set up its own hygiene concept for its around 1000 permanent employees at that time, including 140 orchestra musicians.

what the plaintiff wants

The flautist insists that her salary for the months of August to October 2020 will be paid later. She is of the opinion that there was no legal basis for random, general PCR tests and that neither data protection nor medical confidentiality were protected.

Your employer justifies his actions with a collective agreement for orchestra musicians (TVK), in which there is a passage to exclude contagious diseases. The first two instances in Bavaria dismissed the flautist’s complaint and denied additional salary payments. However, they referred to the collective agreement. Labor lawyer Thüsing now hopes that a decision will be made on the right to issue instructions.