University of Bayreuth, Press Release No. 016/08.02.2022

Compulsory vaccination in health care: "There is a lot coming up for the courts".

From mid-March, the so-called " From mid-March, the so-called "Corona vaccination obligation" will apply to employees in hospitals and in nursing - apparently not in all federal states, individual states are planning transitional arrangements that are likely to be a suspension of the law. There is also uncertainty about the enforcement of the law. Labour law expert Prof. Dr. Adam Sagan, holder of the Chair of Civil Law II at the University of Bayreuth, has the details. He also explains the loopholes in the law in the following  interview.

Are we talking about a vaccination "duty"? 
From the text of the law, there is only an obligation to provide proof in certain areas of health care. Specifically, it says: Workers must prove that they have been vaccinated or have recovered or cannot be vaccinated for medical reasons.

If they do not?
Then the employer must report this immediately to the competent health authority. This decides whether they are banned from working in the facility. The exchange of services in the employment relationship - work for money - thus comes to a standstill. This means that these workers no longer receive a salary. But please bear in mind that hospital administration staff, for example, could also work from home. If they fail to provide proof and are no longer allowed to work at the hospital, the employer may still be able to employ them in a home office.

Who actually decides whether a person is banned from working?
In addition to the legal prohibitions, the legislator grants the health authorities discretionary powers. They are supposed to weigh up all the circumstances of the individual case and decide whether to impose a ban on activity if there is no evidence. But how are the offices supposed to manage this? Some are already absolutely overloaded. Yet the health risk posed by an unvaccinated person in a particular workplace is not easy to assess. The same applies to the consequences of the bans. The offices will hardly be able to foresee at what number a business or department will have to be closed.

If the person nevertheless continues to work in the establishment?
Violations of an official ban on activities are administrative offences that can be punished with fines of up to 2,500 euros. This also applies to the statutory activity and employment bans that apply to employees and employers. The fines are enforced, basically like a parking ticket. Quite theoretically, enforcement imprisonment is also conceivable.

Do the new regulations also affect care workers from other EU countries? 
Workers from other EU member states are treated like nationals. In the case of vaccinated status, they must prove that they have been vaccinated with a vaccine approved here. In my opinion, there are no objections to this under EU law.

Do you think the law is well made? 
No, it has clear weaknesses. Does the legal ban on activities apply to all employees from 16 March or only to those who will still be newly employed then? The legislator probably only thought of the new hires, but that is not what the law says. It says: "Persons who (...) are to be employed from 16 March 2022". This also includes those who have already been employed. Furthermore, many things are not in the law, but only in the printed matter of the Bundestag. The consequences under labour and social security law have not been regulated. As a labour lawyer, I would like to see this improved.

The Bavarian Government is planning "generous transitional arrangements". From the point of view of a labour lawyer, does that make sense?
If the transitional arrangements lead to the law not being implemented de facto, that already raises constitutional questions. In any case, the de facto suspension of administrative implementation does not solve the labour law problems I mentioned. It remains the case that health workers must be vaccinated or recovered as a matter of principle. This raises the questions of whether the employer can demand vaccination, refuse to employ unvaccinated workers, whether remuneration must continue to be paid and whether warnings and dismissals may be issued. Hoping for the inactivity of the health authorities alone only shifts these questions into a legal grey area.

What do you expect from 16 March?
Most workers will prove their vaccination or have already done so. After all, the 3G rule in the workplace has been in place for a while. For those who have neither been vaccinated nor recovered and do not want to be vaccinated, the health authorities would have to request proof from the authorities or order medical examinations, and then issue activity bans. But anyone can have these measures reviewed by the administrative courts. One can also go to court because of the consequences under labour and social law. Because of the ambiguities in the law, there will be a lot coming before the courts.

Porträt Prof. Dr Adam Sagan

Professor Dr Adam Sagan, MJur (Oxon)

Chair of Civil Law II

University of Bayreuth
Phone: +49 (0) 921 / 55-6341

Portraitbild von Anja Maria Meister

Anja-Maria Meister

PR Spokesperson University of Bayreuth

Phone: +49 (0) 921 / 55-5300