(Mar. 10, 2021) On March 2, 2021, the High Administrative Court of Bavaria (Bayerischer Verwaltungsgerichtshof, BayVGH), the supreme court for administrative jurisdiction in Bavaria, published its rulings in two preliminary injunction cases challenging the COVID-19 testing guidelines in nursing homes. It struck down the requirement that nursing home staff be tested three times a week but upheld the testing requirement for visitors.
Facts of the Cases
The applicant in the first case works as a care manager in a nursing home in Bavaria. According to section 9 of the Eleventh Bavarian Regulation to Protect against Infectious Diseases (Eleventh Regulation), as amended, she is subject to observation by the competent local health authority and is required to undergo COVID-19 testing three times a week. The testing is organized by the nursing home, and results must be reported to the nursing home and to the local authority if the authority requests them. The person also needs to report any symptoms to the authority.
Every resident in her nursing home has received both of the shots required for the relevant vaccine, and more than one week has passed since the second shot. She herself has been vaccinated twice as well. In addition, the nursing home still has a comprehensive hygiene protocol in place. She alleged that the testing requirement violates her constitutional rights codified in article 2, paragraphs 1 and 2 (general freedom of action) and article 3, paragraph 1 (equal treatment) of the German Basic Law (Constitution). (BayVGH, Docket No. 20 NE 21.353, paras. 1, 2.)
The applicant in the second case has a mother who resides at the nursing home. The Eleventh Regulation requires that all visitors to the nursing home have a negative COVID-19 test. He stated that his mother and the people in her section of the nursing home have been vaccinated twice. Visits take place in a special visitors’ room so that there is no contact with other residents or staff. He alleged, among other things, that the testing requirement was not proportional and violated his constitutional right under article 3, paragraph 1 of the Basic Law because no distinction was made between people who have been vaccinated and those who have not. (BayVGH, Docket No. 20 NE 21.369, paras. 1, 2.)
With regard to the testing requirement for nursing home staff, the court held that only section 29 of the German Infectious Diseases Protection Act would provide a legal basis. (BayVGH, Docket No. 20 NE 21.353, para. 11.) Section 29 states that “sick people, people suspected of being sick, people suspected of being infected, and carriers may be placed under observation.” People placed under observation are subject to a range of obligations, including the requirement to submit to the testing at issue in the case, but also a requirement to allow health authorities to access their residence or to notify health authorities of changes to their place of residence. In the opinion of the court, it is not evident why all staff in nursing homes should generally be suspected of being infected and therefore be subject to observation, in particular because most of them have been vaccinated. (Paras. 12–19.) The court did not consider other legal bases as a justification for the testing requirement because the regulator clearly stated that staff were put “under observation,” so that the testing and observation were inextricably linked. (Para. 21.) In light of these considerations, the court ruled that the testing requirement was unlawful. (Para. 22.)
With regard to the testing requirement for visitors, the court held that the requirement was most likely legitimate. The requirement to show a negative test result is based on section 28a of the German Infectious Diseases Protection Act and is one of the enumerated measures to control the spread of the virus. (BayVGH, Docket No. 20 NE 21.369, para. 14.) Nursing home residents are particularly vulnerable, and outbreaks in nursing homes have led to a high number of deaths in the past. In the opinion of the court, the testing requirement allows nursing home residents to maintain minimum social contacts and prevent isolation, and is less severe than a ban on visitors. (Para. 15.) It explained that the requirement was most likely proportionate because there are still unvaccinated visitors and nursing home staff, and reliable scientific findings with regard to the effectiveness of the vaccinations are not yet available. (Paras. 16–26.) COVID-19 infections are still high and the impact of the new virus variants cannot yet be evaluated, in the opinion of the court. (Para. 30.)