Nurse Not Paid for Obligatory Coronavirus Vaccination If Not Geriatric Age
In the midst of the Corona-Pandemic two years ago, the government led by Ampel and supported by Union enforced a vaccination mandate for workers in nursing and care homes. Those without proof or valid certificates were dismissed. This controversy landed in Germany's top labor courts.
During the Corona year 2022, nursing facilities had the authority to let go of unvaccinated employees without continued wages. The Bundesarbeitsgericht (BAG) in Erfurt made this call in a case spanning from March 16, 2022, to December 31, 2022. In another ruling, these facilities were also permitted to adjust employees' vacation entitlements accordingly. However, forewarnings were issued against infringing upon employees' fundamental right to bodily integrity. (Az.: 5 AZR 192/23 and 5 AZR 167/23)
By March 16, 2022, employees in nursing and healthcare institutions were expected to furnish proof of Corona vaccination, evidence of immunity through recovery, or proof of vaccine incompatibility. Otherwise, health authorities could impose an "access ban" on the respective institution. This legislation was passed by the Ampel government in December 2021, with the Union's consent. The vaccination requirement was only valid till the end of 2022.
In the first instance, a caregiver from Baden-Württemberg was fired for not submitting the required documents. As a result, her employer terminated her employment and withheld her pay. The BAG upheld this decision. Not only health authorities, but also institutions were entitled to demand proof. This was due to the dual aim of the regulation: to ensure the safety of residents and patients in healthcare institutions "and at the same time maintain the functionality of the institutions."
The ineffectiveness of these measures in subsequent disputes did not alter their legal validity. Without the vaccination certificate, the caregiver "was incapable of performing the necessary job duties," argued the BAG. Consequently, she was not eligible for wages during the suspension.
A warning given in this case must be expunged from the caregiver's employment record. The BAG ruled that failure to get vaccinated was "not a disciplinary offense." "Employers were expected to respect the highly personal decision of employees regarding their bodily integrity," they added.
In another ruling concerning a caregiver in a senior living home in North Rhine-Westphalia, such a suspension also led to a lesser vacation claim. Employers could factor the unpaid time into the calculation of annual leave.
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The Federal Labor Court ruled that nursing facilities in Germany had the right to terminate the employment of unvaccinated workers without pay during the Corona year 2022, following a case from March 16, 2022, to December 31, 2022. In another ruling, the court allowed nursing facilities to adjust employees' vacation entitlements accordingly, serving as an advisor to ensure compliance with the Corona measures.
