Vaccination prevention in the area of facility-related activities - an overview from a labor law perspective

The coronavirus SARS-CoV-2 still has the world population under control. In order to continue to effectively combat the infection process, the federal government has decided to protect particularly vulnerable people from infection and thereby help to relieve the burden on the health system and guarantee health care.

With effect from December 12, 2021, the Infection Protection Act (IfSG) was adjusted and a partial “vaccination requirement” was created for employees in the healthcare industry in Section 20a IfSG from March 16, 2022. In common parlance you constantly hear and read the term “compulsory vaccination”. However, in UE it would be more appropriate to speak of an “obligation to provide evidence”. The term “compulsory vaccination” is not found in the legal regulation itself; rather, the wording consistently refers to “proof of immunity” via a complete vaccination against the coronavirus, a recovery from the coronavirus or a medical contraindication.

The legal regulation of Section 20a IfSG raises numerous questions in practice. We provide a brief overview below.

 Who is affected by the requirement to provide proof of immunity?

The regulation only affects the institutions and companies listed conclusively in Section 20a IfSG. These are health care facilities such as hospitals, (dental) doctor's practices, day clinics, as well as facilities for the care and accommodation of older, disabled or people in need of care. According to information from the Federal Ministry of Health, the facility-related vaccination requirement also applies to facilities and services within the framework of Section 35a SGB VIII, i.e. to (partial) inpatient facilities and services for children and young people with a mental disability or if they are at risk of a mental disability are.

The legal regulation requires that people who carry out activities “in” the facility or company must provide proof of immunity. From the wording of Section 20a IfSG it can be concluded that the person does not necessarily have to have a contractual relationship with the institution or company. An employment relationship or other contractual relationship is not mandatory. Rather, the obligation to provide proof also includes freelancers, volunteers and interns. In addition, the person does not necessarily have to carry out medical or nursing activities. It is not even necessary that the person has (direct) contact with particularly vulnerable groups of people. In addition to nursing and support staff, this also includes external service providers such as craftsmen, cleaning staff or kitchen staff who work in the facility or company.

There is a lack of activity “in” the facility or company if the people are only in the facility or company for a very insignificant period of time, i.e. a few minutes. For example, postal or parcel carriers may be exempt from the vaccination requirement.

Submission of proof of immunity

By the end of March 15, 2022, all affected persons must present proof of vaccination, proof of recovery or a medical certificate confirming the existence of a medical contraindication to the management of the respective facility or company.

• 20 a IfSG then differentiates between the treatment of new hires, i.e. people who will work in the institution or company for the first time from March 16, 2022, and “old employees”, i.e. people who have already been employed without any significant interruption before March 15 Worked at the facility or company in 2022 and continues to work there.

About the new hires:

Persons who want to start working in an affected facility or company from March 16, 2022 must present proof of vaccination or recovery or provide evidence of a medical contraindication before starting their work. A person who does not provide proof may not be employed or work in the affected institutions or companies (see Section 20a Paragraph 3 Sentence 3 and 4 IfSG). Section 20a IfSG expressly provides for this legal consequence.

 To the old employees:

People who already work in the affected facilities or companies must present proof of vaccination or recovery or provide evidence of a medical contraindication by the end of March 15, 2022 (see Section 20a Para. 2 IfSG). If proof is not presented in a timely manner, the facility management or company management is obliged to immediately notify the responsible health authority and to transmit the relevant personal data.

The same applies according to Section 20a Paragraph 4 IfSG in the event that the proof of vaccination or recovery loses its validity after March 15, 2022 and no new - valid - proof is presented subsequently. Proof must then be provided to the health authority upon request within a reasonable period of time. If the employee does not comply with this, the health authority can order a ban on entry or activity (see Section 20a Paragraph 5 Sentence 3 IfSG).

Consequences under labor law if “old employees” fail to provide proof of immunity

The law does not regulate how the institution or company must behave towards the employee if the respective employee does not provide proof of immunity.

The law also does not regulate whether the employee is allowed to carry out their work in the facility or company in the meantime - until an official employment ban is issued by the health department. Section 20a IfSG – unlike new hires – does not provide for a ban on employment for “old employees”.

In our opinion, there is therefore something to be said for the employer being allowed to continue to employ the employee under the conditions of Section 28b IfSG (presentation of a negative test result before starting work) until the health authority issues a ban on employment.

Only if the employee "permanently" refuses to provide the necessary evidence in accordance with Section 20a IfSG could - after an official employment ban has been issued - further steps under labor law, such as termination for personal reasons, be considered.

However, termination for personal reasons presupposes, on the one hand, that the employee no longer has the necessary suitability to carry out their job and, on the other hand, that there is a negative prognosis. The latter means that the employee will probably not be able to fulfill his employment contractual obligations in the future. Since Section 20a IfSG is a temporary regulation until December 31, 2022, employers should be cautious about dismissals and carefully examine each individual case - especially the existence of a negative prognosis.

Melanie Maier, Specialist lawyer for labor law