According to a decision of the Administrative Court of Frankfurt a.M. of May 5, 2020 (Case No. 9 L 1127/20.F), teachers with civil servant status must fulfill their obligation to be present even if no comprehensive hygiene and occupational safety measures are yet available from the authorities. The decision is not yet final at the time of writing.
The complaint was filed by a primary school teacher in Hesse. With its application for summary proceedings, the company wanted to avoid having to comply with its obligation to be present until the hygiene plan and occupational health and safety measures had reached a higher level.
The administrative court did not comply with the request. The employer had a margin of discretion with regard to the design of the contraceptive measures at issue. With the “Corona Hygiene Plan” of April 22, 2020 for the schools in Hesse, the employer had used its discretionary powers with regard to the resumption of school operations. This was not objectionable in view of the current development of the pandemic. Teachers could not expect “zero risk.”
This applies a fortiori with particular regard to the general duty of loyalty under civil service law (cf. Sec. 33 BeamtStG), which is incumbent upon them. In this respect, school operation is part of the provision of public services, so that civil servant teachers have to share the responsibility of the schools towards the students and families.
In addition, the 9th Chamber decided that there was no particular urgency. This is because it cannot be assumed that normal operations with corresponding early care obligations will be resumed by the summer vacations.
With its emergency decision, the administrative court at least set the school attendance obligations of civil servant teachers in times of crisis broadly. These considerations can also be applied to the university teaching sector, at least to some extent. This is because university teachers, at least those who are civil servants, are also subject to the duties of loyalty from the BeamtStG already mentioned in the school context. In the research and teaching sector, however, the academic freedom of university teachers must be considered as a restriction, which already weakens a rigid obligation to be present per se. For the academic (teaching) freedom of the university teacher under Art. 5 para. 3 S. 1 GG also includes the free choice of the content and the (methodical) procedure of his course.
Absolute limit of school and university attendance duties is set also in times of Corona in the provision contained in Art. 33 par. 5 GG (in conjunction with § 45 BeamtStG for state civil servants). In particular, within the framework of the protection of legal interests, the employer must ensure that the civil servant does not incur any special risks to life and health from the performance of his official duties. In other words, even if a claim to “zero-risk” activity is to be rejected, the employer must at least create the basic conditions to avert damage to the civil servants. However, in the opinion of the Administrative Court of Frankfurt a.M., the State of Hesse has sufficiently complied with these basic obligations in the individual case described above.
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