COVID: Unvaccinated employees without lost earnings compensation?

While the first European countries (e.g. Italy and France) are introducing regulations that (fully or largely) only allow employees who have been vaccinated or currently tested against COVID-19 to enter the workplace, such a regulation is not currently in sight in Germany, despite persistently high infection figures. Many employers would welcome a clear regulation on what requirements apply in relation to employees returning to work. Currently, the vast majority of employers do not even have the option to ask about whether an employee has been vaccinated against COVID. The so-called 3G rule (vaccinated, recovered, tested; the term stemming from the fact that all three of these words start with a G in German), which is practiced in public areas throughout Germany, cannot be implemented in the workplace, to the regret of many employers.

Now, the various federal state governments have announced that they will change their previous practice of paying compensation a quarantine. The legal basis for such compensation payments by public authorities is § 56 of the German Infection Protection Act. Employees who suffer a loss of earnings due to an officially ordered quarantine (e.g. due to having contact with a person who tested positive for corona) or due to entering Germany from a risk area can receive a compensation from the federal government if the employer is not obliged to continue paying the salary. However, the regulation provides that such compensation need not be paid, if the person concerned could have avoided the loss of earnings by taking advantage of a mandatory or publicly recommended vaccination.

However, there is currently no systematic examination by the competent state health authorities as to whether the loss of earnings could have been avoided by vaccination. Now, several federal states have already announced that they will change this practice and no longer grant compensation to employees without COVID vaccination. This has apparently already been in effect in Baden-Württemberg since September 15. Rhineland-Palatinate and Bremen want to follow suit on October 1, North Rhine-Westphalia from October 11. In Hesse, Prime Minister Volker Bouffier has spoken out in favor of restricting compensation payments, although he has not yet named any concrete measures.

Other states, such as Thuringia, Mecklenburg-Western Pomerania, Brandenburg and Saxony-Anhalt, are striving for a uniform solution throughout Germany and, for the time being, do not wish to change their current legal practice regarding compensation payments. A planned meeting of the health ministers of the federal states, which is to take place on September 22, 2021, is eagerly awaited.

Photo: © 2021 by Shutterstock / Liudmyla Guniavaia