Facility-based mandatory vaccination: All information for employees and companies
In the course of the coronavirus pandemic, employees in the healthcare and nursing professions have a special responsibility. They have contact with mostly elderly people and people in need of care, and an infection is associated with a high risk of a severe course of the disease. In order to better protect these groups of people from infection and relieve the burden on the healthcare system, the German government decided in February 2022 to make vaccination compulsory in certain institutions. This article explains exactly what this means, what affected employees must do and which violations may even result in dismissal.
Corona: What is the "facility-based mandatory vaccination" and to whom does it apply?
On March 16, 2022, the federal government passed the"facility-based vaccination requirement". It takes into account the special need for protection of people who are dependent on care and medical support and is enshrined in Section 20a of the Infection Protection Act (IfSG). From January 1, 2023, all persons working in the facilities specified therein will be subject to the facility-related vaccination obligation by law - regardless of the type of work they do. For example, it does not matter whether an employee works directly in care or in the administration of a facility. Employees of external companies - e.g. cleaners or tradespeople - must also provide proof of vaccination. The facilities listed in Section 20a IfSG include, among others:
- Hospitals
- Medical and dental practices
- Day clinics
- Preventive care and rehabilitation facilities
- Dialysis facilities
- Full and partial inpatient nursing homes
- Outpatient care services
Pharmacies, on the other hand, are not included in the above-mentioned facilities. Not even if vaccinations are carried out there. However, if pharmacists carry out vaccinations in another facility that fall under the provisions of Section 20a IfSG, they must be vaccinated, provide proof of recovery or present a medical certificate.
Compulsory vaccination: what do affected employees have to do?
Employees in one of the facilities listed in Section 20a IfSG must submit one of the following certificates by March 15, 2022
Proof of vaccination
Proof of vaccination in accordance with the COVID-19 Protective Measures Exemption Ordinance must be provided. The proof must demonstrate complete vaccination protection against the SARS-CoV coronavirus. It should be noted that the criteria regarding:
- of the vaccines used
- the number of individual vaccinations
- a necessary booster vaccination
- of the interval times
must be fulfilled. According to the guidelines, two vaccinations are required for full immunization.
Proof of recovery
Anyone who has already recovered from a corona infection can provide proof of recovery within the meaning of Section 2 No. 5 of the COVID-19 Protective Measures Exemption Ordinance. This must prove the immune protection acquired through a previous infection. The following applies:
- The infection must be confirmed by laboratory diagnostics (PCR, PoC-PCR test).
- The positive test must be at least 28 days old.
- The positive test must not date back more than 90 days.
Proof of medical contraindication
Anyone who is unable to be vaccinated due to a previous illness must submit a corresponding medical certificate. It is not necessary to state a specific reason, but the certificate must be written in such a way that the health authority can check the plausibility of the medical certificate.
What are the legal consequences for unvaccinated people?
If employees do not provide any of the above-mentioned proofs or if there are doubts about their authenticity/accuracy, the health authority must be informed. The notification must be made immediately by the facility or company management. The health authority can then order a medical examination. If the employee concerned does not have this examination carried out, the health authority will generally issue a ban on entering the premises. This means that the employee concerned may no longer enter the facility and may no longer carry out their work. However, continued employment is possible until the health authority has made a decision. The reason: Section 20a IfSG does not give the employer a right to exemption. However, if the health authority issues a ban on entry, the person concerned is generally no longer entitled to remuneration.nullDo you have questions about mandatory vaccination in the workplace? The Recht 24/7 legal advice service can help you on the subject of employment law! Regardless of whether it's about a required certificate, a ban on entering the premises or an impending dismissal: our specialist lawyers are available to you around the clock. You will receive full advice on your legal issue within 24 hours - at a fair fixed price including all follow-up questions.null
Are unvaccinated people threatened with dismissal?
If employees continue to be employed until a decision is made by the health authority, there is no basis for dismissal. This only comes into consideration if an employee definitively refuses to provide one of the required certificates. In terms of proportionality, dismissal usually requires a prior warning. The competent labor court must decide on a case-by-case basis whether the requirements for dismissal are actually met.
Compulsory vaccination and incorrect proof: These are the penalties
Anyone who uses a false or incorrect health certificate is liable to prosecution under Sections 277 to 279 of the German Criminal Code (StGB). The penalty is a fine or a prison sentence of up to one year. In particularly serious cases, the law provides for a prison sentence of three months to five years.nullHowever, the management of a facility or company may also be liable to prosecution. For example, if no notification is made to the health authority despite there being two doubts about the authenticity of a certificate or if an employee continues to be employed contrary to a legal prohibition. Violations of this kind can result in a fine of up to 2,500 euros. If the enforceable obligation to provide proof is not complied with, a penalty payment may be imposed in addition to or as an alternative to the fine.
Do unvaccinated people receive unemployment benefit after termination?
This question can be answered by looking at Section 138 of the German Social Security Code III. This stipulates that anyone who wishes to receive unemployment benefit must be available to the labor market. Those affected must therefore accept any job offered to them by the employment agency if they are suitable and the work is reasonable.nullIn the case of the facility-related vaccination requirement, this means that Anyone who is dismissed or made redundant due to a lack of proof can usually receive unemployment benefit. Provided they make themselves available to the general labor market and are prepared to change jobs regardless of the sector. However, if there were a general vaccination requirement, the situation would be different. Such a vaccination requirement would apply to all professions - unvaccinated people would therefore no longer be available for jobs in other sectors.
Facility-based mandatory vaccination: the most important facts in brief
- In February 2022, the Bundestag decided on a facility-based vaccination requirement.
- This vaccination obligation applies to certain facilities/companies (Section 20a of the Infection Protection Act)
- Hospitals, medical facilities and nursing homes, for example, are affected by the vaccination requirement
- Employees in the listed facilities must provide proof of vaccination or recovery from an infection by March 15, 2022.
- Violations of the facility-related vaccination obligation must be reported to the health authorities by the facility or company.
- Health authorities can issue an entry ban against unvaccinated persons.
- Unvaccinated employees are only threatened with dismissal in individual cases.
- Unvaccinated people are generally entitled to unemployment benefit after being made redundant.
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