Labor law during the pandemic
The COVID-19 pandemic confronted employers with enormous challenges and they were forced to implement labor law measures for which there was simply no blueprint.
One challenge consisted of how to deal with employees who refused vaccination despite the mandatory vaccination requirement for their workplace.
Federal Labor Court clarifies important questions
Now, the Federal Labor Court (BAG) has reached a decision regarding which measures employers are permitted to take in such a situation. The case concerned
- continued payment of remuneration in conjunction with illness while released from work, a warning due to the refusal to be vaccinated (Federal Labor Court, decision dated June 19, 2024, Ref.: 5 AZR 192/23)
as well as - the question of whether vacation entitlements could be reduced due to the release from work resulting from refusing vaccination (Federal Labor Court, decision dated June 19, 2024, Ref.: 5 AZR 167/23).
Unvaccinated at a retirement home
Two employees of a retirement home took their case to the Federal Labor Court. Despite the retirement home’s mandatory vaccination requirement in place at the time (Section 20a (1) of the Infection Protection Act (IfSG), old version), the two employees refused vaccination. They had not already recovered from COVID-19 and there was no evidence that they were allergic to the vaccine.
The employer was forced to release the unvaccinated employees from their work duties and issued them with a warning for refusing to be vaccinated.
Continued payment of remuneration: no, removal of the warning from the personnel file: yes!
An employee demanded in court that her employer removed the warning for refusing the vaccination from her personnel file. She also demanded continued payment of remuneration, as she was unable to work while she was released from her work but did not receive continued payment of remuneration.
In the final instance before the Federal Labor Court, the employee was unsuccessful in her claim for continued payment of remuneration. As the woman fell ill while she was released from her work, the illness did not constitute the sole reason for her not working. Even had she not fallen ill, she would not have been entitled to remuneration because she was not in a position to perform the work owed during the period in dispute. As a consequence, she did not receive continued payment of remuneration – also in view of the fact her release from work was legal at the time.
The Federal Labor Court reached a different ruling regarding the demand to remove the warning from her personnel file: The employer had to remove the warning from her personnel file, as the purpose of a warning is to make the employee aware of breaches of employment contract obligations, for example. However, the refusal to be vaccinated did not simply represent a breach of an employment contract obligation. Rather, it was a highly personal decision protected by the right to self-determination and physical integrity (Art. 2 of the German Basic Law).
What about vacation entitlements?
The second employee wanted the court to clarify whether her employer was permitted to reduce her vacation entitlement because she had been released from work.
Yes, ruled the Federal Labor Court. The employee’s vacation entitlement needed to be recalculated taking into account the time she had been released from her work due to non-fulfillment of her required work activity pursuant to Section 20a of the Infection Protection Act (IfSG (old version) and, therefore, calculated as “zero” working days.
This release from work was not comparable to a decision made solely by the employer, such as the release from work following a notice of termination during the notice period. In the case before the court, the employee would ultimately have had the opportunity to resume her work if the statutory requirements had been met and thus avoid a reduction in her leave entitlement.
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Summary of the key facts:
- People subject to workplace-specific mandatory vaccination could be released from their work duties during the COVID-19 pandemic in 2022.
- They were not entitled to continued payment of remuneration in the event of illness while released from work.
- Employers were permitted to reduce the vacation entitlement proportionately to the period of time released from work.
- However, a warning for refusing to be vaccinated was not lawful.
