In a highly anticipated judgment, the Supreme Court (OGH) fundamentally affirms the obligation to test for employees in the health sector. Was concrete considers dismissal of a nurse who refused to perform a PCR test acceptable. Here is the link to the decision. The higher regional court (OLG) Linz had already made a corresponding decision beforehand.
The specific case: A qualified nurse working in a nursing home refused to be tested for COVID-19 in November 2020. At that time, the ordinance of the Ministry of Health applied that employees of old people’s and nursing homes would only enter their workplaces if they had been tested regularly (at that time weekly, currently even every three days). A company agreement was also in place. The nurse agreed to wear an FFP2 mask.
Frowned upon motive?
After he was fired anyway, he fought the dismissal because, in his opinion, it was for a frowned upon motive. Namely, he rightly refused the test. He argued with the possible unconstitutionality of the mandatory testing set out in the ordinance. He also said that a possible large number of potentially incorrect tests thinned out the staff and, as a result, the residents of a nursing home could no longer be adequately cared for. He couldn’t get through the argument legally.
Walter Pöschl, labor law expert at Taylor Wessing, sees the judgment as confirmation that at least in the health sector, employees can in principle be obliged to have themselves tested. “If you refuse to do this without good reason, you can be terminated”. For example, health reasons could speak against compulsory testing. However, there could then be a legitimate reason for a termination if employees are no longer or can only be employed with difficulty.
According to Pöschl, the basic considerations could possibly also be applied outside of the health sector where law or ordinance stipulate an obligation to test, possibly also where there are a lot of customer contacts.
Effects on 3G and vaccination requirements
The labor law considerations on compulsory testing could partly be passed on by the courts to employees who do not want to be vaccinated. “That will also depend on what the legislator will regulate,” said Pöschl. The OGH ruling is also interesting in that possible constitutional concerns about the corona measures are not relevant under labor law.