A graduate male nurse employed in a retirement/nursing home was given notice of termination because he persistently refused to undergo antigen or PCR tests for SARS-CoV-2 once a week - irrespective of symptoms - at the employer's expense. The case went all the way to the Supreme Court, which ruled in favor of the employer.
The lower courts had already rejected the action to have the employer’s notice of termination declared invalid.
The graduate male nurse attempted to challenge the termination by claiming that it was based on a proscribed reason (protection from termination for proscribed reasons).
In order to assess whether the reason for termination was indeed proscribed, it is decisive to identify the point in time at which notice was given. In the case on hand, the employer (the operator of a retirement/nursing home) was required by a decree of the Ministry of Health to only grant access to the premises to employees who did regular antigen or PCR tests SARS-CoV-2. The decree did not provide for any alternatives, such as wearing an FFP-2 mask.
The employee was thus obliged to adhere to the decree and observe his duty of loyalty by complying with anti-Covid measures in order to fulfil his contractual obligation to work so the employer would be able to continue employing him.
If an employee persistently refuses to comply with such instructions without special reasons and the employer terminates employment due to such refusal, this is not a case of ineffective termination for a proscribed reason.
Generally speaking, the graduate male nurse also relied on the "protection of fundamental rights and freedoms". In case of an infringement of fundamental rights, conflicting interests must be weighed against each other. In this case, the weighing of interests resulted in a decision in favor of the obligation to test "due to the need for protection of the home residents who are vulnerable in a pandemic”.
Yet another argument is that it is not up to the employee to "question the reasonableness of protective measures which his employer was obliged to implement under applicable legislation."
The Supreme Court ruling can be found here: OGH 8 ObA 42/21s RIS
This outcome was to be expected but it cannot be readily applied to all employment contracts as special regulations applied to retirement/nursing homes at the time notice was given. The ruling cannot serve as a general basis for any kind of termination of employment due to refusal of tests; however, it provides guidance and is to be welcomed. Nevertheless, it will always be necessary to weigh all factors, evaluate and act on a case-by-case basis.
Please do not hesitate to contact us if you have any questions regarding the procedure for termination of employment in connection with anti-Covid measures.