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07-27-2022Article

Update Employment Law August 2022

No ban on employment in hospital despite lack of vaccination against SARS-CoV-2

ArbG Bonn of May 18, 2022 - 2 Ca 2082/21

The dismissal of a trainee employed in a hospital due to the refusal to properly wear a mouth-nose protection in accordance with the hygiene concept is invalid without prior warning. 

The provision of Section 20a (2) Sentence 1 IfSG does not contain a statutory prohibition of employment or activity for previously employed employees who do not submit proof of vaccination or convalescence to the employer by March 15, 2022.

Facts

The 52-year-old plaintiff has been training with the defendant as a health care worker and nurse since March 25, 2019. Plaintiff, who was not vaccinated against or recovered from SARS-CoV-2, was observed several times without the required mouth-to-nose coverage at the hospital operated by Defendant. In these situations, Plaintiff was within four to five feet of other individuals and complied, albeit reluctantly, with requests to properly wear the mask - including by Defendant's CEO and the school principal. In addition, problems arose several times at the defendant's testing center. Plaintiff insisted on testing himself due to sensitivity in his throat and nose. However, self-testing was not scheduled or permitted, so Plaintiff was unable to present a test in class on November 27, 2021, and was therefore absent from class without excuse. Due to these divergences regarding the testing process, the plaintiff submitted a negative test result from an out-of-town testing agency on November 29, 2021, which resulted in an admonishment by the principal. As a result, the defendant terminated the plaintiff's employment with a letter dated December 1, 2021, and on the same day stopped payment of the training allowance.

Decision

In its ruling of May 18, 2022, the Labor Court decided that the termination without notice without prior warning was invalid. Despite the introduction of the facility-based vaccination requirement as of March 15, 2022, the plaintiff was awarded a default of acceptance wage, although he did not submit proof of vaccination or convalescence in contravention of Section 20a (2) Sentence 1 IfSG. In detail: 

Since the plaintiff was not warned by the defendant - despite alleged violations of its protection concept - and no concrete danger to third parties occurred due to compliance with the distance regulations of at least four meters, the plaintiff's interest in continuing his training relationship outweighed the defendant's interest in its immediate termination in the present case. It was reasonable for the defendant to issue a warning for the plaintiff's breaches of duty before issuing an extraordinary notice of termination. In addition, it was taken into account that the plaintiff had almost completed two thirds of his training without any further misconduct and that his interest in continued employment was therefore to be classified as very high. By issuing the admonition to the plaintiff, the defendant had, moreover, itself expressed that the breach of duty of which the plaintiff was accused was not so serious that it would use it to issue a notice of termination. 

In addition, the Chamber of the Labor Court awarded the plaintiff his wages even though the plaintiff had not submitted any proof of vaccination or convalescence. This was the first time that a court had ruled that the obligation to provide proof does not apply to employees who were already employed before March 15, 2022, and thus before the provision in Section 20a (3) Sentence 4 of the Infection Protection Act (IfSG) came into force. 

Practical tip

In the case of termination for reasons of conduct, a (written) warning is generally required beforehand. This only does not apply in exceptional cases, if the acceptance of the first breach of duty due to conduct is obviously unreasonable. However, such an exception does not apply in any case if no concrete dangerous situation can be proven as a result of the employee's behavior. An admonition is a milder measure than a warning. Its reprimanding function signals to the employee that the employment relationship will only be endangered in the event of a repetition.

Even if the provision of Section 20a (3) Sentence 4 IfSG only applies to employees who have been employed since March 16, 2022, employers still have the obligation to report violations to the health authority in concrete dangerous situations in accordance with Section 20a (4) Sentence 2 IfSG. Only the public health authority has the authority to issue a ban on entering or activities for the protection of third parties, cf. section 20a (5) sentence 3 IfSG.        
         

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