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

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.