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.
