There is no salary for geriatric nurses without corona vaccination

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Written By Kampretz Bianca

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Erfurt. During the facility-related corona vaccination requirement in 2022, healthcare facilities were allowed to release employees from work without proof of immunity, without continued payment of remuneration. The Federal Labor Court (BAG) in Erfurt decided this on Wednesday. According to another decision, vacations are also reduced in proportion to the period of absence. However, the facilities were not authorized to issue a warning due to the fundamental right to physical integrity.

During the so-called facility-related mandatory vaccination from March 16, 2022 to December 31, 2022, employees in nursing and other healthcare facilities had to present proof of corona protection – a vaccination, a catch-up immunization or a certified intolerance to vaccination. Otherwise, health authorities may issue an “entry ban” to the respective facilities.

Protect residents and patients of healthcare facilities

The geriatric nurse in the first case did not provide such evidence. Her employer therefore dismissed her from work from March 16, 2022 and no longer paid her wages.

BAG has now confirmed that this is legal. Subsequently, not only health authorities, but also establishments gained the right to demand the presentation of this proof. This results from the dual purpose of the regulation, protecting residents and patients of healthcare facilities “and at the same time maintaining the functionality of the facilities”. The fact that doubts subsequently arose about the effectiveness of this measure does not affect its legal effectiveness.

Basic right to physical integrity

Without evidence, the Erfurt judges argued that the geriatric nurse would not have been able to perform the work she was owed. Therefore, she is not entitled to any salary for the exemption period.

However, the BAG continued that the non-vaccination “was not a breach of duty that could be subject to a warning”. Because the geriatric nurse was able to assert her basic right to physical integrity. “Employers have had to respect this as a highly personal decision by employees.”

In another ruling concerning a daily companion in a nursing home in North Rhine-Westphalia, healthcare facilities were also authorized to take periods of such unpaid leave into account when calculating annual leave. “The worker is only entitled to proportionally shorter vacations”, states the BAG. (mwo)

Federal Labor Court, Ref.: 5 AZR 192/23 (main case) and 5AZR 167/23 (holiday entitlement)

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