Anyone with an employment law concern often hires an employment lawyer, especially for more complex issues. Especially when it comes to termination and termination agreements, there's no way around engaging a qualified attorney.

And in many cases the Expectations with the clients: “Now the matter is with the lawyer, he/she will take care of it.” The question is whether clients can truly relax when they receive a mandate. However, the opposite is certainly true. Instead of letting the lawyer work on their employment law, they seek contact almost daily via email or phone.

These are two extremes in cooperation with lawyersBoth forms of maintaining contact with the lawyer are suboptimal. This leads to the question of what "optimal" means and how employees can support their employment lawyer.

In this article we will discuss this and show

• why clients should actively support their lawyer in their mandate,
• why too frequent contact is counterproductive and can impair the lawyer’s work,
• how employees can support their employment lawyer to achieve the best possible result for them.

Sit back and relax: “The employment lawyer will take care of it.”

It is not uncommon for clients to see Employment law attorney A kind of savior. This is supposed to guide the matter toward a successful conclusion, virtually at the push of a button and fully automatically. While you can completely sit back and devote yourself to other things. However, this notion is not only false, but also dangerous for clients.

No matter how good a lawyer for employment law may be, he is always also constructive and reliable cooperation The client is instructed. Of course, clients don't have to stand by and hold the lawyer's hand while they draft lawsuits or pleadings. A good employment lawyer knows what's important in a lawsuit or pleading.

However, it is essential that the client makes every effort to inform the employment lawyer about the actual circumstances to present the best possible picture. Only then can a lawyer organize the facts, put them into context, and derive the appropriate legal assumptions.

Incomplete or inaccurate information may lead to legally incorrect reviews And that ultimately comes at the expense of the clients and can cost them a lot of money.

Our personal experience is that we are able to offer the best possible service to those clients who get the best results can, the

• provide all relevant information and documents,
• respond quickly to inquiries,
• actively participate in the process,
• Answer the lawyer’s questions promptly,
• understand shared success as a team effort.

Such cases not only lead to the greatest possible success, but are also a lot of fun for both the client and the lawyer.

Too frequent contact is a problem

But there is a difference between constructive cooperation in the client relationship and overburdening the employment lawyer. too frequent contact Working with a specialist employment lawyer can be a major challenge. As you can probably imagine, many lawyers have a heavy workload. It's not as fast-paced as in a doctor's office—but there's never a shortage of work.

This is incompatible with all clients daily phone calls or answering emails. This would consume the lawyer's time and mental resources, which are urgently needed elsewhere. Many legal tasks require the undisturbed attention the lawyer and a absolute focus. Therefore, any distraction is a risk from a lawyer's perspective.

Lawsuits, pleadings and detailed research in particular require your lawyer to high level of concentration That's why your lawyer isn't always available. And it may take a while for them to respond to an email. This isn't a sign of disrespect; it directly reflects the quality of your legal work. In other words: It is a quality criterion and also benefits you and your case.

This doesn't mean you should stop contacting your lawyer. However, you should always consider whether contacting them is absolutely necessary. Assume that your employment law specialist Your case in full view and will come to you of his own accord at the appropriate time.

However, when it comes to the constructive cooperation in your case and you would like to share new information and developments, then you can and should contact your lawyer. It is best to inform him in advance by emailthat you have news and would like a meeting. Your lawyer would then have the opportunity to schedule your case and send you suggested appointment times.

How to best support your employment lawyer

So, we've already given you some information on how to best conduct yourself in a client relationship. In this section, we'd like to give you some golden rules on how you can best support your lawyer. Here are some 9 rules for a successful lawyer-client relationship:

1. Provide your employment lawyer with all the necessary information
2. You should respond to your lawyer’s requests promptly
3. Think actively about the client relationship and get involved where it makes sense
4. Make it clear to yourself that your lawyer has an eye on your case and all the circumstances (especially deadlines) (that's his job)
5. Always remember that your lawyer’s time is valuable and the quality of legal work requires concentrated work phases
6. Consider very carefully whether contacting your lawyer is actually necessary and sensible
7. If you need to contact us, please send an email to the specialist employment lawyer in advance (requesting an appointment and the reason for the meeting).
8. Be punctual and well prepared for appointments with your lawyer
9. Always keep in mind that your employment law specialist only wants the best for you (financially and legally)

And what else is worth noting

The advice relates to communication and support from your lawyer. Of course, there are also numerous other points that are important in your relationship with a specialist employment lawyer. This includes, not least, the correct behavior in courtWe'll explain how best to behave there in one of the next posts.

A new ruling by the Berlin-Brandenburg State Labor Court raises doubts about whether it's still so "easy" to secure a good severance package after a termination. The ruling could mitigate the so-called risk of employers failing to accept a job. Employees must then make extensive efforts to apply for a job to avoid being accused of "maliciously failing" to earn income elsewhere.

But first things first: In this article I will tell you

• present the decision of the LAG Berlin-Brandenburg,
• explain the judgment in detail (in particular the “delay in acceptance”),
• show what impact this could have on employees’ chances of receiving severance pay,
• show what exactly the court expects from employees in the event of dismissal.

After reading this article, you will know exactly whether a good severance package is still possible after termination. And what you or your Lawyer for your termination According to case law, this may be necessary to keep the risks on the employer’s side high. Employment law attorney in Hamburg and expert for terminations, Warnings and termination agreements, I am available to answer your questions at any time.

Severance payments: Is the era of high amounts over?

Is the age of generous severance pay in labor law in the employment relationship? This is a question that should be of burning interest to many employees who are currently Termination are affected or are about to be laid off. Can employees still legitimately hope to receive generous or at least adequate severance pay in the event of termination? Or is that a thing of the past?

We are taking up this topic because it has a certain Currentness There are new developments that are not necessarily to the advantage of employees. I would like to show you why it may become more difficult to obtain a good severance payment in the future. First and foremost, there is a new Decision of the Berlin-Brandenburg Regional Labor CourtA decision that grants employees certain rights in the event of dismissal or a dismissal dispute. Duties And this could ultimately lead to a significant reduction in the risk for employers of suffering financial disadvantages due to an ineffective termination.

So that's the subject of this article. We want to bring you up to date and show you why the current situation isn't necessarily in the interests of employees. But let's start with the basics.

No entitlement to severance pay, as every child knows – That’s why employers still pay it

Why do employers pay severance pay to employees in the event of termination? Do you know? It's not because they are legally obligated to do so. Right to severance pay In Germany, employees generally have no right to protection in the event of termination. With a few exceptions, mind you. Rather, the dismissal protection process is aimed at regaining the terminated job. It goes without saying, however, that many employees do not want this.

Severance settlements are almost the rule in labor courts

And yet the Severance agreement before the labor court Ganz und Gäbe. Only: It is just a “settlement” – a voluntary benefit from the employerAnd employers relatively often and happily pay a severance payment during the process, because such a dismissal protection process for them financial risks This is because employers cannot always be sure that their dismissal is legally effective. A valid dismissal requires that the employer Formalities observed and also has a Reason for termination at hand. At least if the Dismissal Protection Act is applicable.

The termination process is therefore quite faultyAnd an ineffective one has come back to haunt employers many times in the past. It is therefore entirely understandable that employers, in the event of a dismissal dispute, are looking for a more "elegant" way to bring about a legally secure termination. And a legally secure pathOne way to achieve termination is to conclude a severance agreement. The employer pays severance pay and, in return, receives a contractual assurance in the agreement that the termination has definitively ended the employment relationship.

That is why employers pay severance payments and avoid the decision

But why do employers even get involved and not pursue legal action? As mentioned, the reason is the financial risks. You certainly know that unfair dismissal proceedings can sometimes Months or years If the labor court ultimately determines that the termination is invalid, the employer faces two major problems:

(1) He must continue to employ the employee he wanted to get rid of.

(2) The employer must pay the employee back wages for the past months in which the employee was not employed due to the termination.

The latter point is the actual “Drivers” of the severance paymentThe employer wants to avoid having to pay the employee back several months' salary in the event of an invalid termination. This represents an enormous financial risk that the employer would like to avoid. Legal experts refer to this as "Risk of default in acceptance"How can he eliminate this risk? For example, by concluding a settlement agreement.

This employee obligation reduces the chances of a good severance payment

Now comes the big "but." There is a legal obligation for employees that limits the employer's risk of default. While it has had only limited impact in the past, things could be different today. Therefore, I would like to briefly introduce this obligation to you.

Obligation of employees – crediting earnings towards compensation for late acceptance

Employees are obliged to earnings from other sources on their claims for default of acceptance credit So, if, for example, you take up a new job after the notice period has expired, you must generally have the salary you earned there credited against your compensation claims against your employer.

But that’s not all: You also need to (fictitious) remuneration credited that you have not achieved because you have found possible and reasonable employment maliciously omit If you have a clear job offer from another employer, you do not have to accept the offer. However, if you do not accept it, you will be in breach of your Duty to mitigate damages against your old employer. As a result, the compensation you could have earned had you taken advantage of the employment opportunity will be offset against your default claims.

But as I said, in the past this obligation had little practical effect, because employers did not know whether the employee actually could have started a job. They could therefore not prove that an employee had violated their duty to mitigate damages. And thus, their risk of default remained.

This plays into employers’ hands when it comes to the issue of late acceptance

But today the situation may be different. Three main reasons are responsible for this:

(1) We have almost all industries Full employmentIt is hardly conceivable that workers today would remain unemployed for more than 2-3 months.

(2) According to a decision of the Federal Labor Court, employers have a conditional Right to information with regard to the application efforts of employees during the delay in acceptance.

(3) One Decision of the Berlin-Brandenburg Regional Labor Court imposes extensive obligations on employees regarding the scope and content of application efforts.

And it was precisely this latter decision by the Berlin-Brandenburg Labor Court that recently caused quite a stir. I would therefore like to briefly introduce it to you.

Berlin-Brandenburg Regional Labor Court: Far-reaching obligations of employees

The Berlin-Brandenburg Regional Labor Court (September 30, 2022 – 6 Sa 280/22) had to decide precisely the case scenario I just outlined. The decision was based on the following facts:

Employees with insufficient application efforts over many years

The employment relationship appeared to be broken. The employer had made several Terminations These were all ineffective. In the meantime, the employer did not employ the employee. The employee then filed a lawsuit against the employer. Compensation for late acceptance for the period. He had duly offered his services, but the employer had not accepted them. This was a classic case of default in acceptance.

The employer defended the employee’s claim, claiming that the employee maliciously omit to earn possible and reasonable income elsewhere. The employer thus made the employee Information about what application efforts he has actually made in the meantime.

The employee then Application efforts fully disclosed, which painted a fatal picture for him. During the period in question, he averaged only one application per week sent. Furthermore, the content of the application efforts was also objectionable. They were neither individualized nor was it clear which position the employee had specifically applied for.

The decision of the Berlin-Brandenburg Regional Labor Court

The Regional Labor Court has claim for payment the employee then rejectedThe number of applications fell far short of the requirements. An employee must make application efforts equivalent to Full-time position if he does not want to be accused of maliciously failing to earn other income. The court also criticized the Quality of applications, because it did not see any serious effort behind the employee's applications to find a new job. The application documents were not attractive enough to secure the desired position.

The court also adopted the case law of the Federal Labour Court and confirmed that employees may, at the employer’s request, Information about their application efforts. At least to the extent that the employment agency or job center has presented relevant job offers.

This follows from the decision to pay employees severance pay after termination

I have already said it at the beginning: The risk of default in acceptance is also a Drivers of the severance payment amount in the event of termination. In addition to the prospect of having to continue employing the employee if the termination proves invalid.

The risk distribution may have shifted

However, this automatism has been undermined by the decisions of the Federal Labor Court and the Berlin-Brandenburg State Labor Court. If employers are now able to successfully demand information from employees about their application efforts, Inaction in the process exposed. The employer can thus shed light on his specific risk of default in acceptance.

On the other hand Employees may be under pressure today: The court requires them to seriously apply for a job – and to do so full-time. This is a very far-reaching obligation imposed on employees by the Berlin-Brandenburg Labor Court. Fulfilling this obligation is not easy, especially if employees are hoping for a severance payment and want to tactically keep the financial risks high for their employer.

A step back – are there really lower chances of severance pay?

But let's take a step back: Are the prospects really that much worse than before? Here are two points that might put the significance of the Regional Labor Court's decision into perspective:

First This is a decision by a single court. The labor market situation is undoubtedly good. Employers also have a right to information about application efforts. However, it is not necessarily the case that other courts of appeal apply similarly high standards to application efforts as the Berlin-Brandenburg Higher Labor Court. And one more thing: The right to information is currently legally secured only with regard to the placement suggestions of the Federal Employment Agency.

Secondly The redistribution of risks in the process may not have been fully thought through. Suppose employees apply for placement suggestions from the employment agency. This leads to an interview. The following question is permissible: Would an employer hire an employee who discloses that he (1) is pursuing legal proceedings against his former employer and (2) will start working for this employer again after winning the unfair dismissal case?

It seems impossible that a potential new employer would hire an employee under such circumstances. Or would it? By applying, however, the employee would have legal duty doneAnd the risk of default in acceptance would remain with the employer.

Final tip on the subject of default of acceptance and severance pay

Finally, I would like to give you the following advice: In the case of a dismissal protection process, you should contact your Employment law attorney the concrete Strategy and tactics You should inform him/her in accordance with Your interests Get instructions on how to behave if the legal dispute takes longer.

The blanket claim by employers and employer representatives that their risk is minimized is not entirely justified. You or your lawyer should Make it clear to the other sideYou should make it clear that you legal homework well done and the employer cannot under any circumstances assume that he is not liable to pay compensation for late acceptance.

There are no guaranteeThat the employer would then be willing to pay a higher severance payment because they would be pricing in a higher risk. However, they're likely to get cold feet. And by doing so, you would also demonstrate that you're legally savvy and know exactly how to improve your litigation situation.

The Berlin Labor Court recently had to decide a case in which the employer had introduced the 2G rule in the company. This requires employees to be vaccinated or recovered in order to work in the company. Because the plaintiff did not meet these requirements, the employer terminated her during her probationary period. The plaintiff's subsequent unfair dismissal claim was unsuccessful.

Employer introduces “2G model” and terminates

The employee was to work for the employer on the occasion of the musical "Ku'Damm 56." For this purpose, the parties concluded two employment contracts, one relating to the rehearsals for the musical and the other to employment as a performer.

The employer’s employees have demanded that “2G model” in the workplace The employer then decided to introduce the 2G model. The goal was to minimize the risk of infection, protect employees, and ultimately fulfill their wishes.

The plaintiff, however, had no vaccination against the coronavirus and had not recovered either. She offered her employer daily test certificates to prove that she was not infected with the coronavirus. The employer did not accept the employee's suggestion and terminated her employment during the probationary period.

The plaintiff lodged an appeal against the dismissal Dismissal protection suit at the labor court.

Berlin Labor Court considers dismissal justified

The Berlin Labour Court has decidedthat the Employer’s termination of probationary period is legal The employer had not violated the Prohibition of disciplinary action out of § 612a German Civil Code by reacting to the plaintiff's lack of vaccination with dismissal.

According to Section 612a of the German Civil Code (BGB), an employer may not discriminate against an employee in an agreement or measure because the employee exercises his or her rights in a permissible manner (Prohibition of disciplinary action). The Court first of all emphasized that the exercise of fundamental rights must also be recognized as an exercise of rights within the meaning of this provision.

The plaintiff also exercised her fundamental rights, as she declared to her employer that she wished to carry out her work without having been vaccinated. The plaintiff thus exercised her fundamental rights in the form of her General personal rights after Article 2 paragraph 1 GG in conjunction with Article 1 paragraph 1 GG as well as their Right to physical integrity pursuant to Article 2, Paragraph 2 of the Basic Law. However, the court held that the employer did not discriminate against her on this grounds.

No discrimination – 2G model causal for dismissal

There is a lack of Causality between exercise of rights and discrimination, because the exercise of their rights by the plaintiffs was not the main motive for the decision to terminate the employment. Rather, the decision to terminate the employment was based on the entrepreneurial decisionto introduce and implement the 2G model in the company.

This business decision cannot constitute a disciplinary measure, also because an inadmissible motivation of the employer cannot be considered if it is based on business considerations build.

Furthermore, the employer’s business decision cannot be legally challenged:

• It is no violation of the General Equal Treatment Act because the rejection of the corona vaccination is not based on a particular worldview.
• The employer’s lack of right to information about vaccination status only affects the feasibility, but not the Legality of the business concept.
• The The requirement profile is also not arbitrary, as a 3G model would have a greater impact on operations than a 2G model and the quarantine consequences would be more severe with a 3G model.
• The entrepreneurial freedom allows the employer to take measures that Occupational health and safety go beyond the legal minimum.
• The plaintiff did not demonstrate any lack of or inadequate implementation of the employer's 2G concept.

The parties may appeal to the State Labor Court.

Assessment of the decision of the Berlin Labor Court

What is the legal implications of the Berlin Labor Court's decision? The ruling undoubtedly strengthens employers' entrepreneurial freedom to implement occupational health and safety measures related to the coronavirus. However, the decision raises legal concerns.

First of all, the Context of the decision The Labour Court has issued a decision on the occasion of a Probationary period termination The Dismissal Protection Act did not apply, which is why the court only examined whether Violation of the prohibition of disciplinary action according to § 612a BGB.

However, in my opinion, further insights can also be drawn from the decision. The way in which the court reasoned within the framework of the prohibition of disciplinary measures leads to the conclusion that disguised examination of a social justification at the level of the business decision. However, this should generally only be made if the Dismissal Protection Act also applies.

The court draws parallels to dismissal for operational reasons and examines the entrepreneurial concept for arbitrariness and takes a Balancing conflicting fundamental rights positions before. In other words: I think that if there had been protection against dismissal, the labor court would have found that the dismissal was socially justified.

Can the employer really order 2G and then terminate the contract?

Whether the Berlin Labor Court's decision is legally correct or not must be assessed based on the conflicting fundamental rights positions. The court concluded that entrepreneurial freedom deserves priority in the present case. The plaintiff's legal positions—protection of general personality rights and physical integrity—must take a back seat, the court held.

This The court’s opinion is questionable, because the weight of entrepreneurial freedom could be overemphasized in the context of the balancing of interests. The court rightly examines whether the employer's entrepreneurial freedom is truly worthy of protection in the case at hand. It therefore considers whether the business decision arbitrary Even in the case of dismissal for operational reasons within the scope of the Dismissal Protection Act, the entrepreneurial decision may not „manifestly irrelevant, unreasonable or arbitrary„ be.

The question arises as to why the court is only examining the issue of arbitrariness. The company's decision may withstand an arbitrary review because it was based on a request from the workforce. However, whether it is based on a Objectivity and reason test withstands is a different matter.

Because the legislator has made it mandatory for employers to ensure that 3G model At the same time, he expressed that this model is sufficient to achieve an adequate level of protection against coronavirus infections.

Also the scientific findings provide no evidence that the 2G model would significantly reduce the risk of infection compared to a 3G model. Against this background, doubts arise as to whether the employer's business decision stands up to a review of objectivity and reasonableness. This is especially true in view of the resulting impairment of the fundamental rights of the plaintiff, who was affected by the dismissal.

All in all, the decision of the Berlin Labor Court is at least debatable.

Other interesting articles

Are Corona testing times remunerated working hours?

Refusal of Corona tests: Dismissal for conduct reasons invalid

“Partial vaccination requirement” – employment ban from March 16, 2022?

If you, as an employee, have signed a termination agreement, it is not easy to withdraw from it. This is once again illustrated by another decision of the Federal Labor Court on the "The requirement of fair negotiation“ in the termination agreement.

The court found that this principle had not been violated in the case at hand, even though the underlying conditions were not entirely "fair." At least from a lay perspective. However, strict legal standards must be applied to a violation of the principle of fair negotiations.

Employer appears with lawyer and termination agreement

The Federal Labor Court’s decision on the requirement of fair negotiations was based on the following case:

At the end of 2019, the company's managing director summoned a sales team coordinator from the building services department to his office. He confronted her with the accusation that she had Unjustified purchase prices changed in the computer systemto create the illusion of higher sales profit.

During the interview, the employee was not only confronted by the company’s managing director. lawyer for labor law was also present – presumably to give legal weight to the employer’s demands.

The managing director presented the employee with a Termination agreement for immediate signature which provided for a termination with a relatively short notice period until November 30, 2019. He gave the team coordinator a choice: either she signs the termination agreement immediately, or there is a extraordinary termination without notice associated with a criminal complaint.

The employee asked for time to consider the termination agreement and wanted to seek legal advice on it. However, the managing director refused. Her only option was to sign the termination agreement immediately. Otherwise, the announced consequences would follow.

The parties then have a ten-minute break They sat opposite each other in silence. Finally, the employee signed the termination agreement and terminated the employment relationship effective November 30, 2019.

Shortly afterwards, she declared the Avoidance of the contract due to unlawful threatShe subsequently asserted the continued existence of the employment relationship before the labor court.

Federal Labor Court: No violation of the “principle of fair negotiations”

The lower courts initially assessed the legal situation differently. The Labor Court upheld the claim, while the Hamm Regional Labor Court dismissed it. The employee's appeal to the Federal Labor Court was unsuccessful.

The Federal Labor Court initially saw no unlawful threat, because the managing director was entitled to take the specific threats into consideration. A reasonable employer would have, in such a case, extraordinary termination and consider filing a criminal complaint. Therefore, the court ruled, there could be no question of any unlawfulness.

Nor did the employer violate the principle of fair negotiation by denying the employee the Obtaining legal advice refused. The employer therefore did not violate this order.

The fact that the managing director only gave the employee the Possibility of immediate acceptance of the offer to conclude a termination agreement, ka violation of the principle of fair negotiation. In this respect, too, there was a breach of his legal obligations under Section 311 paragraph 2 no. 1 BGB combined with Section 241 para. 2 German Civil Code not given.

The principle of fair negotiation – what does it actually mean?

The Federal Labor Court's decision is in line with previous decisions. The landmark ruling on the requirement of fair negotiations was already handed down in 2019. At that time, the court ruled that in the context of termination negotiations no unfair negotiation situations may be created.

The principle of fair negotiation is intended to protect employees below the threshold of genuine lack of will by Freedom of decision in contract negotiations.

A situation is considered unfair if a psychological pressure situation is created or exploited in a way that makes it significantly more difficult or even impossible for the contractual partner to make a free and considered decision.

These include, for example, Exploitation of an objectively recognizable physical or psychological weakness or insufficient Language skills. The use of a moment of surprise (Visiting an employee at home) may constitute unfair treatment.

However, it is only a Minimum level of fairness. Therefore, there is no violation of the principle of fair negotiations if

• the acceptance of the offer to conclude the termination agreement is only possible immediately and the employee has no time to consider it,

• the employee has not been granted any right of withdrawal or revocation, or

• he has no opportunity to obtain legal advice before signing.

The point isn't to create a particularly pleasant negotiating environment for employees. Rather, it's "only" about ensuring a minimum level of fairness prior to the conclusion of the contract.

Federal Labor Court, judgment of 7 February 2019 – 6 AZR 75/18

Classification of the BAG decision on the requirement of fair negotiations

Did the Federal Labor Court correctly rule that the principle of fair negotiation was not violated in this case? There are two reasons for doubt about this.

Firstly, the employee was not just sitting opposite the managing director, but a Lawyer for employment lawThis should be on the part of the employee for additional pressure and emphasized the signing of the termination agreement. Even if the details of the conversation remained contentious, lawyers generally do not hold back in such discussions, but rather push for the conclusion of termination agreements. Because this is ultimately in the interest of their clients – the employers.

In other contexts, it is recognized that the involvement of a lawyer by a party who already has more negotiating power can lead to an unfair negotiation situation. Why this should be different in the context of a termination agreement may not be obvious at first glance. Freedom of choice is regularly at least lowered in such situations due to the particularly prevailing pressure.

In addition, employees can only sign the termination agreement sign immediately This may have increased the pressure on her side and significantly reduced her freedom of choice.

However, not every pressure situation automatically leads to such an unfair negotiation situation. In such constellations, employees are always influenced, so that the result is a Violation of the principle of fair negotiation only in exceptional cases comes into consideration. The interests here are diametrically opposed, and the question is what level of fairness one demands of the employer in such situations.

From my point of view Such an exception did not apply here. The employees could have avoided the situation by simply saying "no." For the sake of fair negotiation, the employer was not required to facilitate the most pleasant negotiations possible, in which they could have weighed the pros and cons of signing – after prior, comprehensive consultation.

Podcast episode on the requirement of fair negotiations in termination agreements

From mid-March 2022, the so-called "partial vaccination requirement" will apply to healthcare facilities and companies in Germany. Which employees are affected by the regulation, and what exactly does the "partial vaccination requirement" entail? Of particular interest is the question of whether the employment and activity ban also applies to existing employees. This article explores these questions and presents the current status of the legal debate.

The legislative objective of Section 20a of the Infection Protection Act

Section 20a of the Infection Protection Act applies to persons (and not only employees) who wish to work in certain facilities and companies in the healthcare sector from 15 March 2022. These facilities include, among others: Hospitals, day clinics, doctor's and dentist's offices or inpatient facilities for the care of elderly, disabled or people in need of care. Persons who wish to work in these facilities from mid-March 2022 must be either vaccinated or recovered persons within the meaning of COVID-19 Protective Measures Exception Ordinance be.

The background to the regulation is, according to the explanatory memorandum, that for certain groups of people, due to their state of health or their age, increased risk of severe or fatal COVID-19 disease However, since the outbreak of the pandemic, coronavirus outbreaks have repeatedly occurred, particularly in hospitals and nursing homes, with some cases resulting in very high death rates.

The legislator assumes that personnel in health professions have a special responsibility, since intensive contact to groups of people who are at high risk of developing a severe and fatal COVID-19 disease. According to the legislature, reliable protection can only be achieved through a high vaccination rate among personnel in these professions. This will reduce the risk of these particularly vulnerable groups becoming infected with the coronavirus. Vaccinated and recovered individuals are less likely to be infected and thus less likely to become carriers of the coronavirus.

Overall, the risk posed by vaccinated and recovered people is significantly lower, it is assumed.

“Partial vaccination requirement” is actually a proof requirement

Before we look at the legal implications of Section 20a of the Infection Protection Act Before we discuss this topic, we feel obligated to dispel a widespread misunderstanding. The so-called "partial vaccination requirement" is, in fact, not a vaccination requirement. Nowhere in Section 20a of the Infection Protection Act does it impose an obligation on the relevant individuals and employees to be vaccinated.

The law only stipulates in Section 20a Paragraph 2 of the Infection Protection Act that persons working in the above-mentioned establishments must report to the management of the respective establishment or company Alternatively, the following evidence must be submitted by 15 March 2022 have:

• A valid proof of vaccination in accordance with the COVID-19 Protective Measures Exception Ordinance
• Proof of recovery within the meaning of the regulation
• A medical certificate stating that they cannot be vaccinated against coronavirus due to a medical contraindication

Employment ban for new employees from mid-March 2022

If such proof is not submitted by 15 March 2022, the institution is obliged to to inform the responsible health authority immediatelyFor this purpose, the facility may also transmit personal data of individuals (including employees). The health authority may then request proof of vaccination or recovery. If the individual does not comply with this request within a reasonable period of time, the health authority may Prohibition of access or activity express.

There is also another regulation in the Infection Protection Act that applies regardless of any order from the health authority: For persons who are "to work" in the respective facilities from March 16, 2022, the obligation to provide proof to the facility management also applies. If these persons do not provide proof of vaccination or recovery, they will not be allowed to work in the facilities from the outset. neither employed nor active A corresponding prohibition order is therefore not relevant here.

Apparently, the legislator differentiates between the legal consequences for persons who are already working in the facilities and those who are to start working from 16 March 2022. While For existing employees, a report to the responsible health authority and the health department then has the option of imposing a ban on entry and activity, new employees will not be allowed to be employed or work at all from March 16, 2022.

But is that really so?

Employment and activity ban also for existing employees?

The Federal Ministry of Health clearly assumes this. In the “Guidelines for vaccination prevention in relation to facility-related activities“ it answers the question, “what steps should be taken if proof is not provided”. And here it actually differentiates between existing and new employees:

• If existing employees fail to provide proof by March 15, 2022, management must immediately notify the responsible health authority. The health authority will then investigate the case and request the proof. If an employee fails to provide proof by March 15, 2022, the health authority can issue a ban on entry and work and initiate fine proceedings.

• In contrast, employees who wish to take up employment in the respective facilities after March 16, 2022, may not be employed or work at all.

Anyone who thinks that this has clarified everything is mistaken. This list of questions only provides the Interpretation of the Federal Ministry regarding Section 20a of the Infection Protection Act This interpretation does not necessarily reflect the legislative intent, nor are the labor courts bound by the Federal Ministry's opinion. This is not changed by the fact that the Federal Ministry has coordinated this guidance with the federal government and state ministries at the specialist level.

The real problem is the misleading wording of Section 20a Paragraph 3 Sentences 4 and 5 of the Infection Protection ActThis refers to people who "should be active from 16 March 2022"The problem is that existing employees will also be required to work starting March 16, 2022. They must continue to fulfill their work obligations. Therefore, there are questions as to whether the (legal) ban on employment and activity actually applies only to new employees.

The wording problem of Section 20a of the Infection Protection Act

According to the explanatory memorandum, this is “only” a problem of wording, because in the Justification for the law stands:

Paragraph 3 regulates the procedure for persons who are to be employed in the above-mentioned establishments from 16 March 2022 new employed
Persons who wish to work in the above-mentioned institutions or companies from 16 March 2022
are to be carried out, must inform the management of the respective institution or company before the start of their
German Bundestag – 20th legislative period – 41 – Printed matter 20/188 activity, proof of vaccination or recovery, medical certificate must be presented in accordance with paragraph 2, sentence 1.

Draft law of December 6, 2021 – Draft law to strengthen vaccination prevention against COVID-19, Printed matter 20/100, B. Special Part, page 40, Re Section 20a, Re Paragraph 3

The explanatory memorandum clearly supports the Federal Ministry’s interpretation. The same understanding also appears to be Federal Constitutional Court to have taken a position on the constitutionality of Section 20a of the Infection Protection Act in the context of interim legal protection.

Persons who are not scheduled to work in the aforementioned facilities or companies until March 16, 2022, must provide proof of vaccination in accordance with Section 20a, Paragraph 2, Sentence 1 of the IfSG (see Section 20a, Paragraph 3, Sentence 1 of the IfSG) before starting their work. Otherwise, they may neither be employed nor work there (see Section 20a, Paragraph 3, Sentences 4 and 5 of the IfSG).

Federal Constitutional Court, decision of 10 February 2022 – 1 BvR 2649/21

Lawyers see arguments for employment ban for existing employees

However, there are legal elaborations that cast doubt on the aforementioned differentiation. It is pointed out that temporal differentiation cannot be reconciled with the wording of the Infection Protection Act (according to lawyer Dr. Kai Bonitz and trainee lawyer Shahnaz Schleiff, NZA 2022, 233).

In addition, lawyers argue that the Employment and activity ban that must cover existing employees according to their purposeExcluding this group of people would mean that this ban would only apply to job seekers. However, such an interpretation would have little impact on the regulation, as this would only apply to a very small group of people (Weigert, The Scope of the New Vaccination Mandatory in the Health Care System, NZA 2022, 166).

Legally, there are (apparently) starting points for applying the ban on activity and employment to existing employees as well.

Legal assessment of the scope of the employment ban

In my opinion, the arguments for applying the employment and activity ban to existing employees are not convincing. The Federal Ministry's assessment that the ban should be differentiated between existing employees and new employees seems convincing.

It is true that Section 20a, Paragraph 3 of the Infection Protection Act lacks the clarity that would have been desirable given the associated legal consequences. it cannot depend solely on the wording; nor on the meaning and purpose of the legal regulation.

The Literal interpretation is only one method in the interpretation of legal provisions. This can provide initial clues to the respective regulation. However, the interpretation of legal provisions must never be limited to the wording. Rather, they must also be interpreted according to their meaning and purpose, historically, and, above all, according to the legislator's intent.

The following picture emerges: The Meaning and purpose of the regulation This will hardly be achieved given the assumed differentiation between existing employees and new employees. In other words, this means that existing employees must be covered by Section 20a, Paragraph 3 of the Infection Protection Act if the protection of particularly vulnerable groups of people is to be truly realized.

Clear legislative intent – existing forces not captured

On the other hand, there is the clearly recognizable will of the legislator, the ban on employment and activity should only apply to those persons who will only start working (for the first time) after March 16, 2022. Everything in the explanatory memorandum to the law points to this.

All in all, it can only depend on what the legislature intended with the regulations. The decisive factor is that the legislature intended to achieve different treatment between existing employees and new employees with regard to a ban on employment and activity. Legal interpretation techniques cannot override this intention, even if such a differentiation, in its spirit and purpose, calls into question the effective protection of vulnerable groups of people.

Courts are required to implement even seemingly unreasonable and inappropriate regulations of the legislature. Principle of separation of powers.

Employees who are not vaccinated or recovered still have to provide proof of a valid COVID-19 test to enter the workplace. And the question arises whether the time spent undergoing COVID-19 testing is compensable working time. There are legal opinions that say this is the case. I'm rather skeptical.

Corona tests as remunerated working hours?

A few weeks ago, like every Saturday, I opened a legal journal. My attention immediately caught an article on the topic of coronavirus testing and working hours. The gist of the article was that coronavirus testing was considered compensable working time because it was performed in the employer's best interest.
 
So that means the employer should pay for the testing times, even if the employees aren't even near the workplace? Yes, exactly, that's what it means. However, I disagree. I believe that no sufficient third-party benefit exists in order to justify an obligation for employers to pay compensation.

Corona tests are not carried out exclusively in the interest of employers

Because the coronavirus tests are not carried out exclusively in the interest of the employer. They are not exclusively “the satisfaction of another person’s need”, as required by the consistent case law of the Federal Labor Court (BAG, 17.10.2018 – 5 AZR 553/17).
 
Employees must provide proof of a valid COVID-19 test if they wish to gain access to the workplace. And it is the employer's responsibility to verify these test certificates.
 
Employees are therefore being tested in order to gain access to the workplace and thus be able to perform the work required by their employment contract. Otherwise, they will be denied access. They cannot work that day and will not receive any pay. The principle applies: no work, no pay.
 
Of course, employers have an interest in ensuring that employees are available to them and perform their contractual duties. Employee presence is essential to operational processes.

However In this case, the self-interest of the employees outweighs to such an extent that there can no longer be any talk of “third-party benefit” triggering the obligation to pay remuneration.

A side view of the case law on travel times

This is also made clear by a glance at the case law on the obligation to reimburse travel time. other interest intensity of the employer required in order to affirm the benefit of others.
 
Irrespective of this, the BAG also frequently speaks in this context of a “exclusively third-party activity”This applies to both travel and changing times (Federal Labor Court, December 12, 2018 – 5 AZR 124/18). However, an exclusive benefit to others is unlikely. Coronavirus testing is at least also self-serving.
 
It's also important to remember that testing also gives employees more freedom on a daily basis, allowing them to use public transport and visit facilities, for example.

Because an employee refused to be tested for coronavirus infection, he was dismissed for misconduct. The employee filed a wrongful termination suit with the Hamburg Labor Court and was successful. The court ruled that the dismissal for misconduct was invalid. However, this does not mean that other similar cases will necessarily have the same outcome.

Employee refuses employer's corona tests

The employer provides passenger transport services in Hamburg. The employee is employed there as a driver. The employment contract stipulates that the employee must strictly adhere to the driver's manual.

The employee was on zero-hour short-time work. He was scheduled to return to work on June 1, 2021, after the short-time work period ended. In the meantime, the employer has updated the manual. According to this manual, drivers are required to conduct regular COVID-19 self-tests. It also stated:

“On your first day of work, a supervised on-site test will be conducted before the start of your shift.”

The employee refused this test before starting work on June 1, 2021. He also refused to take the test kits provided by the employer. The employer subsequently granted the employee unpaid leave from work for June 1, 2021.

This behavior of the employee was repeated on 02.06.2021 and 03.06.2021 and ultimately resulted in a ban from the premises and the Termination of employment.

Refusal of Corona tests: Dismissal for behavioral reasons unlawful

The court first addressed in detail the question of whether the order to conduct rapid coronavirus tests in an employment relationship was lawful. It answered this question in the affirmative with detailed reasoning and emphasized that the order was covered by the employer's right of direction. The court stated that the extent of the interference with the employee's physical integrity was extremely minimal, as only a swab was taken from the front of the nose.

The interference with personal rights associated with the testing was also of a minor intensity. Whereas the employer, due to its duty of care under § 618 German Civil Code in conjunction with Section 3 (1) ArbSchG can demonstrate a clear overriding interest in employees' health.

Despite the legality of the test order by the employer, the order issued by him was dismissal for misconduct invalid. The employer did not issue a prior warning to the employee, or the court could not be certain that a warning had been issued. The court considered the prior warning to be absolutely necessary, as it was a milder measure “to prevent the infringement of the copyright infringement [incomplete], to avoid “𝘐𝘧𝘩𝘦𝘴𝘵𝘩𝘦𝘴𝘵 𝘣𝘦𝘯𝘥”.

Refusal of corona tests can lead to dismissal

In my opinion, the court made the correct decision, and its reasoning is also convincing. Termination is always a last resort. It cannot be ruled out that a prior warning would have brought about a change in the employee's behavior. A correct warning signals to the employee: "Your employment relationship is at stake."

This demonstrates once again how important a warning is in an employment relationship. And not just any warning, but one that is effective. Employees often have good grounds for appeal against dismissal if the employer has not issued a warning beforehand. We know this as Lawyers for terminations only too well.

However, the ruling does not provide a free pass to ignore employer testing orders. Quite the opposite. The court categorically considered the refusal of COVID-19 tests a breach of employment contract. The dismissal ultimately failed due to a lack of proportionality, not due to a lack of breach of employment contract obligations.