Employees who are not vaccinated or recovered still have to provide proof of a valid COVID-19 test to enter the workplace. And the question arises whether the time spent undergoing COVID-19 testing is compensable working time. There are legal opinions that say this is the case. I'm rather skeptical.
Corona tests as remunerated working hours?
A few weeks ago, like every Saturday, I opened a legal journal. My attention immediately caught an article on the topic of coronavirus testing and working hours. The gist of the article was that coronavirus testing was considered compensable working time because it was performed in the employer's best interest.
So that means the employer should pay for the testing times, even if the employees aren't even near the workplace? Yes, exactly, that's what it means. However, I disagree. I believe that no sufficient third-party benefit exists in order to justify an obligation for employers to pay compensation.
Corona tests are not carried out exclusively in the interest of employers
Because the coronavirus tests are not carried out exclusively in the interest of the employer. They are not exclusively “the satisfaction of another person’s need”, as required by the consistent case law of the Federal Labor Court (BAG, 17.10.2018 – 5 AZR 553/17).
Employees must provide proof of a valid COVID-19 test if they wish to gain access to the workplace. And it is the employer's responsibility to verify these test certificates.
Employees are therefore being tested in order to gain access to the workplace and thus be able to perform the work required by their employment contract. Otherwise, they will be denied access. They cannot work that day and will not receive any pay. The principle applies: no work, no pay.
Of course, employers have an interest in ensuring that employees are available to them and perform their contractual duties. Employee presence is essential to operational processes.
However In this case, the self-interest of the employees outweighs to such an extent that there can no longer be any talk of “third-party benefit” triggering the obligation to pay remuneration.
A side view of the case law on travel times
This is also made clear by a glance at the case law on the obligation to reimburse travel time. other interest intensity of the employer required in order to affirm the benefit of others.
Irrespective of this, the BAG also frequently speaks in this context of a “exclusively third-party activity”This applies to both travel and changing times (Federal Labor Court, December 12, 2018 – 5 AZR 124/18). However, an exclusive benefit to others is unlikely. Coronavirus testing is at least also self-serving.
It's also important to remember that testing also gives employees more freedom on a daily basis, allowing them to use public transport and visit facilities, for example.
