The current plans of the Bavarian Prime Minister and CSU chairman Markus Söder to suspend compulsory vaccination for employees in health and care facilities are irritating labor lawyers.

"Söder cannot suspend the legal provisions on facility-related vaccination or order transitional periods," said Giessen professor of civil law and labor law, Lena Rudkowski, of the FAZ

Katja Gelinsky

Business correspondent in Berlin

  • Follow I follow

In Bavaria, too, the obligation of health and care facilities to demand proof of vaccination or recovery from their employees or a medical certificate of a medical indication against a vaccination remains the same.

Gregor Thüsing, Chair of Labor Law at the University of Bonn, added when asked, "If the Bavarian state government refuses to implement the law, institutions in Bavaria are also obliged to report to the health authorities." The corresponding adjustments in the Infection Protection Act , which the legislature passed in December 2021, are to apply from March 15.

According to the two legal experts, Söder's plan to suspend compulsory vaccination would lead to considerable legal uncertainties for the health authorities.

Perhaps one could see it in such a way that the authorities could then set generous deadlines for revaccinations, said Rudkowski.

"But if the public health department refrains from reacting options that would have been legally provided and appropriate, maybe absolutely necessary, then the supervisor is also acting illegally," Thüsing pointed out.

"A law that should not be applied would not have been passed."

The unions have also spoken out in the debate.

The chairman of the German trade union federation, Reiner Hoffmann, announced on Wednesday that if all labor law issues were not clarified, the DGB would not support the implementation of facility-related vaccination.

In addition, the German Parity Welfare Association is concerned with the question of whether employees who were already working in facilities before March 15, 2022 and have not submitted any proof to the management by then may continue to work beyond this point in time, at least until a ban is imposed by the health department.

The legislature does not give an explicit answer to this.

One could see it in such a way that the employer himself should have the opportunity to issue an employment ban, said Rudkowski.

Institutions that proceeded in this way, however, moved on legally uncertain ground.

Thüsing sees it that way too.

"The determination of who does not provide the evidence cannot act would be too brief."

Fear of staff shortages in nursing homes

The legislator deliberately placed the decision on an employment ban in the hands of the health authorities.

He wanted to keep some leeway open, for example in the event that there were bottlenecks in the delivery of vaccines.

The lack of nursing care in individual homes could also be a reason for the differentiated reactions of the health authorities.

Such individual decisions, Thüsing emphasized with a view to Söder's plans, are "but something other than an announced breach of the law".

There is also political resistance to the implementation of the facility-related compulsory vaccination because of the concern that numerous people who are unwilling to be vaccinated could be dismissed and thus lead to more staff shortages in nursing homes.

According to Rudkowski, the mere decision of a nurse not to be vaccinated does not automatically justify termination.

Not even if the health department has issued a ban on employment.

Because the principle of proportionality also applies to labor law.

Thereafter, the employer must consider more lenient means than dismissal and, for example, arrange for other employment in the facility.

However, the new activity must also be reasonable for the employee.

An unvaccinated chief physician will hardly be employed as a porter, which raises the question of whether the facility-related vaccination requirement also applies to the porter or whether it should be interpreted restrictively in this case.

Another tricky point when it comes to dismissal is the time uncertainty associated with corona vaccinations.

It is about protecting the employer from future unreasonable burdens, explains Thüsing.

"Dismissals are not sanctions," Rudkowski clarifies.

A prognostic decision has to be made as to whether a trusting cooperation is still conceivable in the future.

However, this decision is made more difficult if the facility-related vaccination requirement is disregarded by the fact that the legislator has limited the regulations to the end of this year.

How it will continue after that is open.

However, it can be said with some certainty that dismissals, if they are given at all due to the existing uncertainties, will end up in court.