Termination due to lack of vaccination is not effective

The Bonn Labour Court (ArbG) ruled on 18 May 2022 that before an authority issues a ban on activity, Termination due to lack of vaccination is not effective (Judgment of May 18, 2022, Ref. 2 Ca 2082/21The case concerned the extraordinary termination of a training contract in the field of healthcare and nursing. The reason for the termination was that the plaintiff was not vaccinated against the coronavirus SARS-CoV-2 and allegedly refused to be tested and failed to comply with the mask requirement.

The defendant’s extraordinary termination was not suitable to terminate the training relationship. Section 22 paragraph 2 no. 1 Vocational Training Act (BBiG) After the probationary period, the vocational training contract can only be terminated without notice for good cause. Good cause for extraordinary termination of the training contract exists if there are circumstances that make it unreasonable for the terminating party to continue the training contract to its completion. In the present case, however, not even a warning was issued.

No legal employment ban according to Section 20a Paragraph 2 IfSG

Section 20a, paragraph 2, sentence 1 of the Infection Protection Act (IfSG) contains no statutory Prohibition of employment or activity for previously employed employees who have not provided their employer with proof of vaccination or recovery by March 15, 2022. The wording of Section 20a, Paragraph 2, Sentence 1 of the IfSG leaves open the possibility of a ban on work for an employee already employed before March 15, 2022. While proof of vaccination or recovery should be presented, the consequence is merely an obligation for the facility management to notify and submit the information to the responsible health authority. A ban on employment and work only applies to newly hired employees (Section 20a paragraph 3 sentences 4 and 5 IfSG). By distinguishing between these two groups of people, it becomes clear that a ban on employment or activity does not apply to employment relationships that already existed before 15 March 2022. The decision on a ban on activity for employees already employed before 15 March 2022 was made in accordance with Section 20a paragraph 5 sentence 3 IfSG imposed on the health authorities as a discretionary decision on a case-by-case basis. Consequently, dismissal due to lack of vaccination is not possible until a ban on work is issued by the relevant authority.

Rogert & Ulbrich recommends

The Bonn Labor Court's ruling makes it clear that dismissal due to lack of vaccination is not so easy. If you have received a dismissal or a letter requesting proof of immunization status from the authorities, then let us advise you now free of charge and without obligation. Take advantage of our free initial telephone consultation now and ask our specialized lawyers your questions.