Corona Update: The facility-based vaccination requirement starting March 16, 2022

Since the beginning of the Corona pandemic, there have repeatedly been high death rates in hospitals and care facilities in the event of an outbreak of COVID-19 infections, as very elderly and persons with preexisting conditions are affected with above-average frequency by a severe course of the disease.  For this reason, the German Bundestag, with the approval of the Bundesrat (the German second parliamentary chamber), passed the so-called “facility-based vaccination obligation” back in December.

In accordance with § 20 a of the German Infection Protection Act (Infektionsschutzgesetz – IfSG), effective from March 16, 2022, persons working in hospitals, care facilities, doctors’ offices, outpatient care services or comparable facilities must prove that they have been fully vaccinated against Corona or show proof of recovery. If vaccination is not possible for medical reasons, an appropriate medical certificate is required.

It is therefore not, as the name suggests, an “obligation to vaccinate”, but an “obligation to provide evidence of vaccination”. Ultimately, this may mean that the persons covered by the facility-based vaccination obligation will no longer be able to carry out their activities in the relevant facilities. This is then likely to lead to loss of employment in most cases.

The aim of the new regulation is to minimize the risk for particularly vulnerable persons and age groups in contact with frequently changing staff and caregivers. A high vaccination rate is intended to achieve an increased level of protection in the above-mentioned facilities.

The new, facility-based vaccination requirement stipulates that persons working in the referred facilities (from the health and care sector) must present proof of vaccination or convalescence or a medical certificate of a medical contraindication to their employer by March 15, 2022. If the proof is not submitted in time, the management of the facility is obligated to inform the responsible health authority. The health authority may then take additional measures. It is also important to note that individuals who are new to working in the aforementioned facilities on or after March 16, 2022, may only be employed if the appropriate proof is provided.

The new regulation is aimed at all persons who are active in one of the aforementioned facilities. The term “active” is to be understood broadly in this context. The existence of an employment relationship in the classical sense between the respective facility and the person working there is not relevant for the obligation to provide proof of vaccination or convalescence. Thus, this law does not only refer to employees in the respective facilities, but also trainees, volunteers, interns and temporary workers. However, in view of the published explanatory memorandum, it can be assumed that there must be a status that can be likened to an “employment relationship” between the institutions affected by the obligation and the person specifically referred to. According to this understanding, external third parties who, for example, only frequently travel to different facilities for professional reasons (e.g. sales representatives in the healthcare sector) are not covered by the facility-specific vaccination obligation. However, the facilities can effectively regulate the access of these persons to the facilities by structuring their house rules, without the need for obligatory vaccination. In principle, the vaccination obligation applies in all areas of the respective facilities. It is not a question of (direct) contact with vulnerable groups requiring protection.

The currently foreseeable, most important employment law consequences of the regulation at a glance:

• If the persons previously active in the facilities do not provide proof of complete vaccination against COVID by March 15, 2022, the facility must immediately inform the responsible health authority about this; the health authority will decide on further measures.
• If the proof has lost its validity due to the passage of time, for example in the case of a convalescent certificate, a new proof must be submitted within one month.
• If a person persistently refuses to provide proof of 2G status (vaccinated or recovered) or a medical certificate that says they cannot be vaccinated, termination of the employment relationship may be considered, although in most cases a prior warning will be required.
• As of March 16, 2022, no person may enter into any kind of employment relationship with said facilities unless they can provide the required verification.

At present, many sides are publicly discussing the facility-based vaccination requirement that has already been adopted. There is widespread criticism that it does not achieve its protective purpose, that it is unclear in detail and, in particular, that it overburdens the health authorities with its implementation. In addition, there is a widespread fear that the already significant shortage of nursing staff will be exacerbated by the implementation of mandatory vaccination. However, the facility-based vaccination requirement has now been passed by the legislature, and it will thus come into force in mid-March. It then remains to be seen how the new regulation will be implemented in detail.