Im Lawyer ranking of the Handelsblatt 2023 Mr. Markus Tönjann and Mr. Jens Niehl are once again listed as “Best Lawyers” in the field of labor law.
Author Jens Niehl
Termination due to insults in a WhatsApp group
ZDF Volle Kanne Talk with Jens Niehl from August 29, 2023
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Electronic certificate of incapacity for work
ZDF Volle Kanne Talk with Jens Niehl from January 09, 2023
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Obligation to record working hours
ZDF Volle Kanne Talk with Jens Niehl from December 08, 2022
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Saving energy at work
ZDF Volle Kanne Talk with Jens Niehl from October 14, 2022
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Home management may release unvaccinated nurses
Two unvaccinated nurses were released from work in the nursing home and complained about it. The Hessian State Labor Court (judgment of August 11.08.2022, 5 – 728 SaGa 22/XNUMX) has now confirmed that the exemption was legal. After that, retirement homes will no longer have to employ their nursing staff who are not vaccinated against Corona.
Background: Compulsory vaccinations for employees in the care and health sector
Since March 15, 2022, there has been a facility-related vaccination requirement in the care and health sector in accordance with Section 20a of the Infection Protection Act (IfSG), according to which employees must have proof of vaccination against the SARS-CoV-2 virus or current proof of recovery. Since then, nursing staff who cannot provide appropriate proof may no longer be re-employed.
However, this direct ban on employment does not apply equally to persons who have already been employed. If they were unable to provide proof of vaccination or recovery by March 15, 2022, the facility management first had to report the case to the responsible health department, which could then issue a ban on employment.
Home management releases unvaccinated carers
In this case, the manager of a retirement home released two unvaccinated nurses from work from March 16, 2022 without an official ban on employment. She also stopped paying.
The retirement home was based on the regulations in § 20a IfSG. On the other hand, the nurses had complained in summary proceedings before the Gießen labor court. At first they asked to be kept employed. The court dismissed the lawsuits in judgments dated April 12, 2022.
Note: As far as can be seen, the employment relationship formally continued. There was no dismissal.
Unvaccinated carers are not entitled to continued employment
The nurses were also unsuccessful in the next instance.
The LAG confirmed that the exemption was justified and the nurses had no right to continue to be employed in the retirement home. Although § 20a IfSG does not provide for an immediate employment ban for existing employment relationships, the vaccination certificate acts like a professional activity requirement. Consequently, after weighing up the interests, the management of the home was allowed to release the two employees: the employees' interest in being able to go to work speaks for themselves. Employers cannot simply exclude their employees. However, the interest of the residents of the retirement home, who are particularly at risk, to be protected from infection prevails.
With the verdict, both urgent proceedings have ended with legal effect. The main proceedings have not yet been decided.
Outlook: Continued payment of wages during the leave of absence?
The question, which is of interest to both parties, whether wages should continue to be paid for the duration of the leave of absence, could not be decided here. Since the court understands the vaccination as a professional activity requirement, it could be assumed, at least in the case of employees who are unwilling to be vaccinated, that they will not perform their work as owed. Then her right to payment would not continue to exist on a leave of absence.
A final assessment of the decision is only possible when the reasoning has been published and the main proceedings have been concluded.
The new proof law: changes and need for action by employers
On August 1, 2022, the new Proof Act will come into force. The law had to be amended to meet the requirements of the EU directive on transparent and predictable working conditions. In the previous version, the regulations were not very relevant in practice. However, the changes are now urging employers to act.
1. The previous legal situation
Previously, the Evidence Act required employers to provide their employees with written evidence of the most important terms of the contract within one month of the start of the employment relationship.
The main points were those that are usually also part of the employment contract: contracting parties, start and duration of the employment relationship, place and time of work, activity, remuneration as well as holiday duration and notice periods.
Accordingly, most employers fulfilled the obligations of the Evidence Act by simply handing over the employment contract
2. What will change as a result of the new law?
The new Evidence Act expands and supplements the catalog of contractual conditions to be communicated. Among others, the following points are added:
- End date or duration of a fixed-term employment relationship
- duration of the probationary period
- Composition and amount of wages including overtime pay, surcharges, allowances and bonuses as well as any special payments
- Rest break, rest periods, explanation of the shift system and regulations, if applicable.
In addition, the obligation to inform is extended to include information on pension provision, further training, overtime and work abroad.
Also new are information requirements on the dismissal protection procedure. In addition to the procedure to be followed, they also include the notice periods and the period for filing an action for protection against unfair dismissal. In addition, at least one reference to the written form requirement must be made. Precise wording is particularly important here.
Formally, it is important that the strict written form applies. At least one signature from the employer is required. In Germany, the proof may not be provided in electronic form either, although the European directive expressly permits this. In fact, this means that employment contracts are only concluded in writing.
In addition, the previously one-month period for submitting the information for essential content of the contract is significantly reduced. In the case of new employment contracts, the company must provide information on the first working day at the latest about the name and address of the contracting parties, the composition and amount of the wages, the agreed working hours and the agreed breaks and rest periods, as well as the shift system, the shift rhythm and the requirements for shift changes in the case of agreed shift work. Further information about the start of the employment relationship, if applicable the time limit, the duration of any agreed probationary period, the place of work, the job description and the possibility of ordering overtime must be provided within seven days. The transcript with the other information according to § 2 sentence 2 of the Evidence Act must be handed over no later than one month after the agreed start of the employment relationship. This includes, for example, the duration of vacation, the procedure for giving notice of termination and the deadline for filing an action for protection against dismissal, as well as information on any applicable collective bargaining agreements and company agreements.
3. Need for action by employers – what should employers do now?
The changes will be relevant for both new and existing employment relationships.
Model employment contracts can be adapted to the requirements by supplementing them with the other required information.
Old contracts that were concluded before August 1, 2022 should not be subsequently adjusted, but employers must submit the essential working conditions in writing within seven days upon request. Because of this short deadline, it is advisable to prepare a corresponding template for such a case, which meets the requirements of the new Evidence Act.
4. What are the legal consequences of a violation?
So far, employees could only ask their employer to make up for the missed proof. A violation now constitutes an administrative offence. The employer faces a fine of up to 2.000 euros per violation. However, the effectiveness of the employment relationship remains unaffected.
Minimum wage and mini jobs
Full pot talk with Jens Niehl from September 30.09.2022th, XNUMX
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BAG: Company integration management is not enough
Dismissal due to illness is possible. However, the requirements for dismissal due to illness are very high. It is obligatory for the employer to explore alternatives to dismissal in advance. The employment relationship should only be terminated if no reasonable employment opportunity is available. However, the Federal Labor Court (BAG) has now decided that further operational integration management may have to be offered (BAG, judgment of November 18.11.2021, 2 - 138 AZR 21/XNUMX). This is the case if the employee was absent due to illness for more than six weeks after the last offer.
General information on operational integration management
If the employer wants to give notice because of frequent or long-term illness, he has to meet high requirements. Above all, it is important that he offers a so-called operational integration management (bEM). This is necessary as soon as the employee has been unable to work for more than six weeks (in a row or repeatedly) within a year.
As part of the bEM, those involved discuss how the employee can continue to be employed in a manner appropriate to their suffering in order to reduce or avoid absenteeism. Depending on the illness, a reduction in working hours or a transfer may be considered.
If the employer does not offer the bEM, a later dismissal is not illegal per se. However, the employer then has to prove in court that a bEM would not have provided any opportunities to continue to employ the employee in a meaningful and suffering manner. The hurdle is very high. Against this background, it is often said that the bEM is in fact an almost mandatory requirement for dismissal due to illness.
Employee falls ill again after bEM
The plaintiff took action against his dismissal, which was given to him because of illness-related absences. In the years 2017 to 2019 he was absent from a total of 204 working days. On March 5, 2019, the employer initiated a conversation with him to find ways to reintegrate him into the company (bEM). However, the employee was again unable to work for 79 days afterwards. The employer then resigned. There was less than a year between the bEM interview and the termination.
The plaintiff considered the dismissal invalid. He argued that the employer should have carried out another bEM. The first is no longer sufficient because of the renewed absences afterwards.
Federal Labor Court: second bEM was necessary
The BAG agreed with the plaintiff. In fact, another bEM should be offered if there has been an absence of more than six weeks since the last bEM. This also applies if not a year has passed since the last bEM.
The wording of the relevant § 167 Para. 2 S. 1 SGB IX already speaks for this. The sentence "If employees are uninterruptedly or repeatedly unable to work within a year for more than six weeks" does not determine a minimum interval between two bEM discussions.
The purpose of the law also speaks for another bEM. The threshold of six weeks of absence was chosen because after this period dismissal due to illness is often justified. In order to prevent dismissal, integration options should be sought as soon as possible. Waiting until a year has passed makes no sense.
The defendant did not explain that a new bEM would not have produced a positive result because the previous one had not produced such a result.
The defendant also did not sufficiently explain that the implementation of a (further) bEM could not have shown any positive results. The employer bears the burden of explanation and proof of the objective uselessness. To do this, he had to explain comprehensively and specifically why it was not possible for the employee to continue working in the job he had previously, nor to adapt and change it to suit his suffering, and why the employee could not have been employed in a different job with a different job.
When is the bEM completed?
The BAG's decision leads to an important follow-up question: When is a bEM completed? The point in time is important because employers may oblige subsequent absences to a new bEM. The judges of the BAG give the following information:
- In any case, a bEM is concluded when the employer and employee agree on it.
- The same applies if the employee rejects the bEM or does not agree to its further implementation.
- Unilateral terminations by the employer are not possible. If this stops its efforts, the bEM will only come to an end if none of the other parties involved name any serious approaches for preventive measures. The employer can give them a reasonable period of time to do this.
Conclusion
The hurdles for dismissal due to illness remain high. Even if the employer has already offered a bEM, he may have to take the same initiative again. Employers are therefore advised to give notice of termination quickly after an unproductive bEM. For employees, the following applies once again: even well-prepared notices of termination are often vulnerable.