The Corona Cougher: Can you fire an employee who coughs at a coworker during the pandemic?

by ZELLER & SEYFERT

A ruling from Düsseldorf Regional Labor Court on April 27th, 2021, shows the importance of evidence when it comes to the termination of an employee, even in Corona-related violations.


The case: employee deliberately coughs at colleague and hopes they get Corona?

The plaintiff was an apprentice since August 1st, 2015, finished the apprenticeship on January 17th, 2019 and became a mechanic employee at the defendant’s company.

On March 11th, 2020, the defendant started a pandemic plan due to the coronavirus. They implemented safety measures including social distancing, hygienic measures, and requirements to cover one’s mouth & nose with tissue/arm when coughing and sneezing. These measures were announced to employees in various emails and in a company meeting, as well as printed and displayed throughout the office.

The plaintiff in question was accused of failing to comply with hygiene measures due to the coronavirus pandemic and violating social distancing rules. The defendant claims the plaintiff said he does not take the measures seriously and wouldn’t comply with the rules. They also claimed the plaintiff touched another employee on his arm against his will.

The prime reason for termination happened on March 17th, 2020, where the defendant claims the plaintiff purposely and without any barrier coughed at a colleague within arm's length and said something along the lines of “I hope you get Corona”.

After approval from the works council, the defendant terminated the plaintiff without notice on April 3rd, 2020. Whether he had corona or not was not clear at the time.

On the other hand, the plaintiff claims he didn’t endanger the colleague and was allegedly abiding by the social distancing rules and cough etiquette as much as he could. On the day the coughing incident happened, he claimed had a tickle in his throat and coughed spontaneously but kept enough distance between himself and his coworker. When the colleague expressed his disturbance, the plaintiff told him to “chill, you won't get corona from this”.


The ruling: dismissal protection granted

The 3rd Chamber of the Düsseldorf Regional Labor Court upheld the unfair dismissal lawsuit in favor of the plaintiff without allowing an appeal. The ruling was decided after hearing several witnesses offer their testimony at the detriment of the defendant company. While the defendant’s claims of the plaintiff deliberately coughing at a colleague and saying he ‘hoped he would get Corona’ would have been a valid behavioral reason for termination, the lynchpin in the case ended up being the inability to prove the claims. As the employer bears the burden of proof for the reasons for termination, the court ruling was at their expense.

When preparing to defend a termination case, there are careful considerations needed to be taken in order to have a successful outcome. If you or your company has a similar termination case, consider speaking with one of our specialized and experienced Employment Law attorneys.German Employment Law expert Dr. Christian Zeller has many years of experience in dealing with such matters and would gladly offer a free initial ‘Corona consultancy’, to discuss the finer points of your case.
Feel free to reach us by our contact form, directly via email at mail@zellerseyfert.com or by telephone (+49 (0) 30-40 36 785-80)

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