Vac­ci­na­tion oblig­a­tion in health, nurs­ing and care premis­es?

In about three weeks, the in­sti­tu­tion-based oblig­a­tion to get vac­ci­nat­ed that the Ger­man Par­lia­ment (Bun­destag) passed on 10 De­cem­ber 2021 through the Act to Strength­en Vac­ci­na­tion Pre­ven­tion against COVID-19 will be­come ef­fec­tive. Apart from the ques­tion of whether this reg­u­la­tion will be­come ef­fec­tive na­tion­wide (Bavaria wants to wait), the new­ly in­sert­ed § 20a In­fec­tion Pro­tec­tion Act (IfSG) is most­ly in­ter­pret­ed based on the word­ing: "The fol­low­ing cit­i­zens must ei­ther be vac­ci­nat­ed or re­cov­ered as of 15 March 2022..." to the ef­fect that it in­cludes a com­plete premis­es-based oblig­a­tion to get vac­ci­nat­ed. How­ev­er, if one takes a clos­er look at para­graph 5 of the reg­u­la­tion, it is rather cor­rect that em­ploy­ees of the re­spec­tive premis­es only must pro­vide proof of com­plete vac­ci­na­tion or re­cov­ery by 15 March 2022 to con­tin­ue their em­ploy­ment. The em­ploy­eris not oblig­ed to dis­miss staff. The em­ploy­er is risk­ing a fine only if they hire­some­one new who is not vac­ci­nat­ed as of 16 March 2022.

§ Sec­tion 20a, para­graph 1, sen­tence 1 In­fec­tion Pro­tec­tion Act (IfSG)ex­plains in de­tail which in­sti­tu­tions and per­sons.

In ad­di­tion to the quite com­pre­hen­sive cat­a­logue of the reg­u­la­tion, the Min­is­ter of the Ger­man Health De­part­ment Lauter­bach has re­cent­ly pre­sent­ed a hand­out that con­sists of 23 pages to sup­port the fed­er­al states in im­ple­ment­ing it. Ac­cord­ing­ly, hos­pi­tals, fa­cil­i­ties for out­pa­tient surgery, pre­ven­tive care and re­ha­bil­i­ta­tion fa­cil­i­ties, dial­y­sis fa­cil­i­ties, day clin­ics, ma­ter­ni­ty fa­cil­i­ties, doc­tors' prac­tices, den­tist­s' prac­tices, and com­pa­ny doc­tors as well as prac­tices of oth­er health care pro­fes­sions in the field of hu­man med­i­cine are af­fect­ed. Treat­ment or care premis­es such as hos­pice ser­vices, spe­cialised out­pa­tient pal­lia­tive care and blood do­na­tion venues are in­clud­ed as well. Pub­lic health ser­vice premis­es, where med­ical ex­am­i­na­tions, pre­ven­tive mea­sures or out­pa­tient treat­ment are car­ried out are also men­tioned. Ac­cord­ing to the pa­per, an oblig­a­tion to get vac­ci­nate­dis also manda­to­ry­for emer­gency ser­vices, so­cio-pae­di­atric cen­tres ac­cord­ing to § 119 Ger­man So­cial Code V (SGB V), med­ical treat­ment cen­tres for adults with men­tal dis­abil­i­ties or se­vere mul­ti­ple dis­abil­i­ties ac­cord­ing to § 119c Ger­man So­cial Code V (SGB V), pro­fes­sion­al re­ha­bil­i­ta­tion premis­es ac­cord­ing to § 51 Ger­man So­cial Code XI (SGB IX) and pro­fes­sion­al re­ha­bil­i­ta­tion ser­vices, as­sess­ment and test­ing ser­vices op­er­at­ing un­der the pro­vi­sions of Ger­man So­cial Code V (SGB V) or Ger­man So­cial Code XI (SGB XI). Phar­ma­cies do not be­long to the afore men­tioned premis­es. The pa­per says this does not ap­ply even if vac­ci­na­tions are car­ried out at phar­ma­cies.

Ac­cord­ing to its word­ing, the reg­u­la­tion cov­ers all cit­i­zens work­ing in the afore-men­tioned in­sti­tu­tions and en­ter­pris­es. There­fore, it does not mat­ter on which le­gal ba­sis the ac­tiv­i­ty oc­curs. The reg­u­la­tion cov­ers em­ploy­ees as well as free­lancers, trainees, and vol­un­teers. Fur­ther­more, no dif­fer­ence is made re­gard­ing which spe­cif­ic ac­tiv­i­ty the re­spec­tive per­son per­forms, so that all ar­eas of the in­sti­tu­tion are cov­ered, mean­ing man­age­ment as well as clean­ing, kitchen and med­ical or nurs­ing and care givers. In terms of time, a longer time pe­ri­od is re­quired and not just a few min­utes. There­fore, the reg­u­la­tion does not ap­ply to postal work­ers or bi­cy­cle couri­ers, who are usu­al­ly only at the premis­es for a short timeCom­mis­sioned com­pa­nies (e. g. crafts­men) could be a bor­der­line case. Each case will have to be ex­am­ined in this re­gard.

Un­til 15 March 2022, the afore-men­tioned em­ploy­ees are oblig­ed to pro­vide the em­ploy­er with proof that they are com­plete­ly vac­ci­nat­ed, have re­cov­ered, or present a med­ical cer­tifi­cate if they can­not be vac­ci­nat­ed be­cause of med­ical rea­sons. If the em­ploy­ee has not pre­sent­ed proof by that time or there are doubts about the au­then­tic­i­ty or ac­cu­ra­cy of the con­tent of the pre­sent­ed cer­tifi­cate, the premis­es man­agers are oblig­ed to no­ti­fy the re­spec­tive health de­part­ment. The same oblig­a­tions ap­ply if no new proof is pre­sent­ed af­ter the ex­piry date. To con­trol com­pli­ance with the oblig­a­tion to get vac­ci­nat­ed, the health de­part­ment can re­quest ev­i­dence, even if the em­ploy­er has not in­volved the health de­part­ment. The health de­part­ment can pro­hib­it em­ploy­ment at the premis­es and im­pose a ban on en­ter­ing if proof is not pre­sent­ed. In case of non-com­pli­ance with the le­gal re­quire­ments, em­ploy­ers and em­ploy­ees face a fine of up to EUR 2,500.

A ban to con­tin­ue workingat the premis­es only ap­plies if the health de­part­ment is­sues a spe­cif­ic ban af­ter their in­spec­tion to the re­spec­tive per­son. Only then is it no longer per­mis­si­ble and pun­ish­able by a fine if in­fect­ed per­sons are work­ing at the premis­es. There­fore, the health de­part­ment has dis­cre­tionary pow­ers if the op­er­abil­i­ty of the premis­es is threat­ened. Thus, the re­spec­tivepremis­es can in­flu­ence the de­ci­sion by pre­sent­ing the im­mi­nent con­se­quences of a pos­si­ble en­try ban for their own op­er­a­tions and for the care of clients and the pop­u­la­tion.

If the health de­part­ment or­ders a ban on en­ter­ing the premis­es af­ter 16 March due to lack of im­mu­ni­sa­tion and the re­spec­tive per­son con­stant­ly re­fus­es to show proof, dis­missal could be con­sid­ered. Mea­sures tak­en be­fore this date, such as dis­missal on grounds of con­duct could raise le­gal con­cerns un­less the em­ploy­ee takes steps on their own ac­cord be­fore 16 March to en­sure their abil­i­ty to per­form. It re­mains to be seen how the courts will rule in the case of ac­tions for pro­tec­tion against dis­missal.

The afore men­tioned­does not ap­ply to cit­i­zens who are un­able to be vac­ci­nat­ed against the coro­n­avirus due to a med­ical rea­son.

RA Chris­t­ian Dreil­ing