OGH: Lawful dismissal in case of refusal to have regular COVID tests

Oct 20, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) has ruled that the termination of a nurse's employment is permissible if the nurse fails to undergo regular COVID-19 testing.

In the case at hand, the defendant, who runs a nursing home for the elderly, terminated the employment relationship with the plaintiff (a qualified nurse). The works council agreed to the termination. The reason for the termination of the employment relationship was that the nurse refused to undergo an antigen test or a PCR test for the coronavirus once a week - regardless of symptoms of illness - at the employer's expense, as instructed by the employer.

The nursing home argued that at that time it was obliged to grant access to the home only to tested staff due to Section 10 para 4 of the COVID-19 Emergency Measures Regulation (COVID-19-NotMV, BGBl II 2020/479), but also with regard to the residents in need of protection.

The plaintiff sought a declaration of invalidity of the dismissal and relied on Sec. 105 para 3 subpara 1 lit i of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG).

Both the court of first instance and the Court of Appeal dismissed the claim.

The OGH agreed, because there was no reprehensible motive for dismissal: Sec. 10 para 4 COVID-19-NotMV was in force at the time of dismissal. According to the OGH, the concerns expressed by the plaintiff that this regulation was unconstitutional are ineffective because even unconstitutional regulations are to be applied until they are repealed by the Constitutional Court. Furthermore, according to the OGH, the testing obligation can also be justified by the responsibility of the home operator for the health of the residents.

In addition, the defendant was the direct addressee of the regulation and could not be content with the plaintiff wearing an FFP2 mask as a substitute to testing. Moreover, the regulation imposes an at least indirect obligation on the plaintiff to undergo the ordered tests. The OGH also did not see a disproportionate encroachment on personal rights.

The dismissal was therefore effective.

OGH 8 ObA 42/21s (14.09.2021)