For whom the facility-related vaccination obligation applies

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While the general compulsory vaccination is still being discussed, it has already been decided for certain health care facilities. © Marijan Murat / dpa / dpa-tmn

The legislature has decided that certain facilities in the health and care industry are required to be vaccinated. What does that mean for the employees there? And when can consequences threaten?

Berlin / Offenburg – For the care and health sector, vaccination is compulsory in the new year. As of March 15, employees in hospitals, for example, have to prove that they have been vaccinated against the coronavirus, have been medically exempt from a vaccination or have recovered.

Without this, they are no longer allowed to work in certain facilities.

But what exactly do the rules mean for employees? And how exactly does the proof have to be provided? Answers to important questions.

What does “facility-related mandatory vaccination” actually mean?

On December 10, 2021, the Bundestag and Bundesrat passed a facility-related vaccination requirement. Strictly speaking, it is about an “obligation to provide evidence”. Employees must therefore submit proof of vaccination or recovery by March 15, or they need proof that they are medically exempted from the obligation to be vaccinated against the coronavirus.

Health care institutions
From mid-March, employees in certain health care facilities will need proof that they have been vaccinated, have recovered or have been medically exempt from being vaccinated against Covid-19. © Marijan Murat / dpa / dpa-tmn

The exact status of a vaccination certificate is regulated in the current version of the Covid-19 Protective Measures Exceptions Ordinance (Section 2, Number 3) and determined by the Paul Ehrlich Institute.

The employer is required to provide evidence, explains Jürgen Markowski, specialist lawyer for labor law in Offenburg. It applies to people who work in hospitals, nursing homes, facilities for the disabled, doctors’ offices, emergency services or maternity facilities. A complete list can be found on the website of the Federal Ministry of Health.

How is the process intended?

Specifically, it should work like this: Employers should be able to check the vaccination or convalescence status of their employees and present the evidence to the health department on request. Failure to comply should be treated as an administrative offense that is punishable by fines.

Are employees threatened with termination without notice without proof?

“It doesn’t go that fast at first,” says Markowski. The obligation to provide the relevant evidence is a secondary contractual obligation. If employees do not comply, there is a breach of obligations from the employment contract. “The normal labor law regulations then apply.” That means: Before the employer announces a notice of termination, he must first ask for evidence to be provided.

Consequences under labor law
Anyone who cannot prove a vaccination as an employee in the health care system may have to reckon with consequences under labor law in the future. © Marijan Murat / dpa / dpa-tmn

If nothing changes as a result, a warning will follow. This is an indication for employees that they are violating their contractual obligations and the employer will no longer accept this. In the warning, the employer indicates that there is a risk of dismissal – if the employee still fails to provide evidence.

However, if you still do not provide evidence, you must expect that the employment relationship will be terminated. “Since the employer has to adhere to the legal requirements, he has no other choice,” says Markowski.

Are employees even allowed to come to work without proof?

No. Workers who do not provide evidence may not be employed, explains Markowski. In such a case, the person is released – without receiving any further remuneration. Anyone who does not want to be vaccinated and cannot be employed elsewhere must expect a dismissal in the foreseeable future.

The German Hospital Association (DKG) has already announced that there is a risk of “serious consequences” without submitting proof. The health department will impose a ban on entry for employees without proof, employers will have to arrange for an exemption without continued payment of wages. Even if no vaccination certificate is shown later, dismissals would be inevitable.

Can employees be employed elsewhere without proof?

The obligation to provide evidence is institution-related, says Markowski. “This means that all jobs in the legally designated facilities are recorded.” As the DKG emphasizes, administrative employees are also subject to the obligation to vaccinate.

According to Markowski, employers must always try to seek milder means before taking drastic disciplinary action or stopping paying wages. That means: If the respective workplace allows this, the employer must offer employees to work from home. “The same applies if the employer also has other jobs outside the facility and can offer them,” says Markowski.

It can also be about jobs that are not comparable to the previous position, if they are to be filled. Then the employee has the choice of accepting such an offer or accepting the warning and termination. According to Markowski, however, this question will always have to be made on a case-by-case basis.

Are unvaccinated people threatened with unemployment benefit sanctions after they have been given notice?

According to Markowski, employees without proof, who may receive a dismissal, do not have to expect sanctions for unemployment benefits: “The employees concerned were not responsible for the loss of their jobs. You can “only” not provide a legally required proof, “so the assessment. However, there are currently no instructions to the job centers or employment agencies.

Doesn’t the general compulsory vaccination come anyway?

It is still open whether there will be a general compulsory vaccination. It is planned that the Bundestag will decide on the basis of cross-party group motions.

The Federal Association of Private Providers of Social Services (bpa), in which care employers are represented, had recently spoken out in favor. bpa President Bernd Meurer argued that the signal of a general compulsory vaccination would take the pressure off the care.

“After the one-sided burden of care due to the facility-related vaccination requirement, the risk is growing in many places that care workers will turn their backs on their jobs. Politicians must absolutely prevent that, ”said Meurer. Risk groups could best be protected if visitors and relatives are also vaccinated. dpa

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