Vaccine mandate for certain workplace settings

Ever since the pandemic began, we’ve seen repeated outbreaks of the virus in certain settings such as residential care homes and assisted-living facilities for people with disabilities, some of which led to high death rates. To prevent the virus from entering and spreading through these institutions, it’s essential to ensure that everyone who works there is fully vaccinated. Even though medical and care staff were offered the chance to get vaccinated right at the start of the vaccination campaign, there are still some big gaps in vaccine uptake among these cohorts.

The obligation to provide proof of vaccination will come into force on 16 March, 2022 and run until 31 December, 2022. The start date of 16 March, 2022 was deliberately chosen to give enough time to those individuals who have not yet got vaccinated against COVID-19 to complete their full series of vaccinations.

Proof of vaccination (as defined in Section 2 (3) of the COVID-19 Protective Measures Exemption Directive), which must comply with the criteria stipulated by the Paul Ehrlich Institute (PEI) with regard to the vaccine used, the number of individual vaccinations required for complete vaccination protection, any booster vaccinations required for continued full vaccination protection, the length of time that must pass after vaccination for complete vaccination protection, and the length of time that must not be exceeded between individual vaccinations and booster vaccinations.

Proof of recovery (as defined in Section 2 (5) of the COVID-19 Protective Measures Exemption Directive), which must comply with the criteria stipulated by the Robert Koch Institute (RKI) with regard to the type of testing that may be used to demonstrate prior infection, the amount of time that must have elapsed following the test that demonstrated the prior infection (or the test certificate needed to lift the isolation that was imposed due to the prior infection), and the maximum period of time that may have elapsed since the test performed to demonstrate the prior infection.

Should an individual have an existing medical contraindication, they may provide a medical certificate stating that they cannot be vaccinated against COVID-19.

Proof of recovery:
according to the Robert Koch Institute, a recovery certificate is only valid if the positive test was taken at least 28 days ago and no more than 90 days ago. For travel purposes, i.e. when entering other EU member states, the recovery certificate is valid for six months.

Proof of vaccination:
within Germany, proof of having completed the primary course of vaccination is valid indefinitely. As of 1 February, 2022, EU digital vaccination certificates have a validity of nine months for travel purposes. This rule applies to the primary course of vaccination. The booster shot is valid indefinitely.

The COVID-19 Protective Measures Exemption Directive governs the following points:

• Vaccination certificates must be submitted in German, English, French, Italian or Spanish.
• Vaccination must have been carried out using vaccines specified by the Paul Ehrlich Institute (PEI); that is, Biontech, Moderna, AstraZeneca, Johnson&Johnson or Novavax.
• All requirements concerning the number of vaccine doses and the intervals between them must be observed.

EU certificates must be accepted in all cases.

No, the law does not provide for any exception or exemption on religious grounds. Any individuals who are essential to an institution’s work may be granted a temporary exemption from the ban (e.g. for three months). Should these individuals fail to get vaccinated within this exemption period, a replacement must subsequently be found for them.

What counts is the date of your first vaccination: anyone who has received their first shot will still have their data sent to the health authorities, but they will not be prohibited from entering their workplace and may continue to work. Steps must, however, be taken to ensure that these individuals complete their full course of vaccination.

The vaccine mandate for certain workplace settings covers:

• Special forms of housing for people with disabilities and workshops for people with disabilities as defined in Section 219, Book IX of the German Social Code (SGB), as well as other comparable institutions that provide structured daytime services (e.g. day care centres).
• Workshops for people with disabilities.
• Residential facilities (e.g. assisted communal living facilities for children and young people with disabilities) and semi-residential facilities (e.g. therapeutic day care centres, therapeutic children’s facilities) for children and young people with disabilities.
• Residential and semi-residential facilities for children and young people with mental disabilities.

It does not, however, apply to the following:

• Inclusive kindergartens.
• Facilities for homeless people.

In the case of rehabilitation facilities, the basis on which services are provided makes no difference, i.e. regardless of whether services are provided on an inpatient or outpatient basis, those individuals who work at the facility are subject to the vaccine mandate. Medical rehabilitation facilities also include facilities for medical-vocational rehabilitation (Phases I and II) as well as rehabilitation facilities for mentally ill or disabled people (RPK).

• Residential and semi-residential care facilities (care homes, day care and night care, short-term care facilities).
• Special forms of housing for people with disabilities and workshops for people with disabilities as defined in Section 219, Book IX of the German Social Code (SGB), as well as other comparable facilities that provide structured daytime services (e.g. day care centres).
• Workshops for people with disabilities.
• Residential facilities (e.g. assisted communal living facilities for children and young people with disabilities) and semi-residential facilities (e.g. therapeutic day care centres, therapeutic children’s facilities) for children and young people with disabilities.
• Residential and semi-residential facilities for children and young people with mental disabilities.

It does not, however, apply to the following:

• Inclusive kindergartens.
• Facilities for homeless people.

In the case of rehabilitation facilities, the basis on which services are provided makes no difference, i.e. regardless of whether services are provided on an inpatient or outpatient basis, Those individuals who work at the facility are subject to the vaccine mandate. Medical rehabilitation facilities also include facilities for medical-vocational rehabilitation (Phases I and II) as well as rehabilitation facilities for mentally ill or disabled people (RPK).

In the case of vocational rehabilitation institutions and services defined in Section 51, Book IX of the German Social Code (SGB) (vocational training centres, vocational retraining centres and comparable facilities), the basis on which services are provided makes no difference, i.e. regardless of whether services are provided on an inpatient or outpatient basis, those individuals who work at the facility are subject to the vaccine mandate.

Vocational rehabilitation services include, in particular, specialist integration services that support the participation of people with disabilities in the general workforce, Supported Employment Service providers, the Budget for Work and Budget for Training subsidies, and companies that provide employment assistance services.

Please refer to the list in Section 20a (3) of Germany's Infection Protection Act (IfSG) and the FAQ on the vaccine mandate for certain workplace settings published by the German Federal Ministry of Health. Facilities covered by the vaccine mandate include:

• Outpatient care facilities as defined in Section 72, Book XI of the German Social Code (SGB) and individuals as defined in Section 77, Book XI of the SGB.
• Outpatient care services that provide intensive outpatient care in institutions, residential communities or other communal living arrangements.
• (according to the FAQ issued by the German Federal Ministry of Health) individuals who work in communal living facilities with outpatient care for the treatment, care or nursing of the elderly or of individuals requiring care.

The following institutions and companies do not fall under the scope of Section 20a of Germany's Infection Protection Act (IfSG) in the territory of the federal state of Baden-Württemberg:

• In principle, all facilities in the field of child and youth welfare in Baden-Württemberg, even if in some isolated cases these also provide care to people with disabilities.
• Institutions and companies defined in Section 35a, Book VIII of the German Social Code (SGB), in which services are provided for children and young people with mental disabilities or at risk of mental disabilities.
• Some duties of the youth welfare offices and the State Youth Welfare Office that are not carried out within the framework of early intervention.

However, if a child and youth welfare facility is directly affiliated with an institution that is subject to the vaccine mandate for certain workplace settings as defined in Section 20a of the IfSG, and if it is a legal entity and thus an institution within the meaning of Section 2 (15) of the IfSG, then it is subject to the vaccine mandate for certain workplace settings as defined in Section 20a of the IfSG. Based on this determination, the public and independent providers of facilities and the State Youth Welfare Office are exempt from the mandatory deadline for reporting employees who may not have been vaccinated to the health authorities.

The legislation is sufficiently broadly worded so that it does not matter whether the individual working in an institution or company actually has direct contact with vulnerable groups or not. The only exceptions are cases in which it is possible to completely rule out the possibility of any contact with the vulnerable groups or with staff who have direct contact to these vulnerable groups due to the nature of the work involved, for example in cases where there is a separate administrative building.

Social firms, which help provide employment to people with disabilities, operate within the general labour market. The same regulations apply to them as to any other companies that employ people with severe disabilities. Individuals who work in social firms are not required to provide proof that they have been vaccinated.

According to Section 20a of Germany’s Infection Protection Act, the obligation to provide proof of vaccination when working in certain workplaces applies to everyone who works in the facilities mentioned above, regardless of whether the individual is self-employed or employed. It therefore applies to the owners and operators of practices, clinics and institutions as well as to their employees.

In this context, the nature of the employment is irrelevant (employment contract, temporary/subcontracted staff, internships, civil service). Accordingly, volunteers, interns and individuals on work placements are also covered by the mandate.

• Dieticians
• Occupational therapists
• Midwives and maternity nurses
• Speech therapists
• Massage therapists and spa therapists
• Orthoptists
• Physiotherapists
• Podiatrists

All individuals already working in the affected institutions and companies (“existing staff”) must provide the management of the institutional company with valid proof of vaccination or recovery or proof of a medical contraindication by 15 March 2022.

Starting on 16 March, 2022, individuals who intend to work in the institutions or companies affected by the mandate shall be obliged to submit the corresponding proof to the management of the respective institution or company prior to commencing their work. It is not permitted to employ any individual who fails to provide such proof.

It is important to distinguish between different cases here:

Any person newly recruited on or after 16 March 2022 who has not submitted proof shall not be employed or be permitted to work in the institutions or companies concerned.

If “existing staff” have failed to submit proof by the end of the day on 15 March, 2022, or if there is any doubt as to the authenticity or accuracy of the certificate provided by an individual, then the management of the respective institution or company shall immediately notify the health authorities responsible and forward the required personal data to said health authorities. The health authority shall then investigate the case and ask the individual to provide the relevant proof.

If the individual fails to provide the corresponding proof within a reasonable period of time, the health authorities may then prohibit the person concerned from entering or working in the institution or company concerned or may initiate proceedings to impose a fine.

Yes, they are entitled to do this as of 16 March, 2022. Even if the health authorities have not received any notification from the management of an institution or company, all those individuals who are obliged to provide proof under the vaccine mandate shall be obliged to provide the required proof when requested to do so by the health authorities. Any individuals who are obliged to provide proof and who fail to comply with this request may be fined.

The institution or company concerned must provide personal data to the health authorities such as the surname and first name, gender, date of birth, address of main residence or usual place of residence and, where applicable, address of the current place of residence of the person concerned, as well as their telephone number and e-mail address where available. The Ministry of Social Affairs, Health and Integration has set up a digital notification portal for two key reasons: firstly, to enable the institutions and companies concerned to fulfil their legal notification obligations in the simplest and most secure way possible and, secondly, to enable the health authorities to receive these notifications and process them promptly.

A standardised state-wide digital notification portal is available for this purpose through which the corresponding proof can be transmitted to the health authorities.

The notification must be sent to the health authorities responsible for the district in which the specific workplace of the person who works at the institution/company is located.

The person concerned is obliged to submit corresponding proof to the local health authorities responsible for their case on request. Should there be any doubt as to the authenticity or accuracy of the medical contraindication certificate, the health authorities may order a medical examination to determine whether the person concerned cannot be vaccinated against the SARS-CoV-2 coronavirus due to a medical contraindication.

If the individual concerned fails to comply with the request for proof within a reasonable period of time, or if the individual concerned fails to complete the medical examination ordered by the health authorities, then the health authorities may prohibit the individual concerned from entering the corresponding institutions and companies and/or prohibit the individual from working in such institutions and companies.

Any individual who fails to submit proof requested by the health authorities, or who fails to do so correctly, completely or in a timely manner, or who fails to comply with an enforceable order issued by the health authorities, shall be committing an administrative offence pursuant to Section 73 (1a), points 7f or 7h of the German Infection Protection Act (IfSG).

In this case, any objection to, or action to set aside, the order for a medical examination or the prohibition on entering the corresponding facility or carrying out work there shall not suspend the effect of said order or prohibition.

If the individual completes a full course of vaccination at a later date, the prohibition on entering or working at the corresponding facility shall be lifted.

The rules applicable to the existing staff of a company or institution also apply to external service providers who were already working for that institution or company on a regular basis prior to 16 March, 2022. This means that, in these cases, a notification concerning external employees shall also be sent by the management of the institution or company concerned. Conversely, the rules that apply to new employees also apply to service providers who take up new and regular employment in an institution or company affected by the vaccine mandate.

As a general rule, individuals entitled to benefits (budget recipients) who employ persons within the scope of a personal budget according to Section 29, Book IX of the German Social Code (SGB) are also required to provide proof of having met the obligations set out in the vaccine mandate for certain workplace settings.

In these situations, where people are employed within the context of a personal budget, the health authorities must take into account during any inspection that it is particularly important to ensure the continued provision of care, since it is unlikely that a replacement will be available for an individual on an ad hoc basis.

Yes, provided that the nature of the work involved means that the possibility of coming into contact with vulnerable groups can be safely excluded.

Individuals who are on sick leave or parental leave when the deadline expires on 15 March, 2022, shall not be required to submit their certificate until they return to work.

In the case of self-employed individuals who fall under the provisions of Section 20a of the German Infection Protection Act (IfSG), there is no facility management to whom proof could be submitted by 15 March, 2022. In such cases, proof of compliance must be documented accordingly so that, in the event of an official inspection, the individual can demonstrate that the proof was available at the point at which the deadline expired.

The following applies in the case of new employees:

• Individuals who are due to begin work on or after 16 March, but who fail to submit proof of vaccination or recovery to the facility management prior to commencing work, shall not be able to take up this employment.
• The employer will be required to release such individuals from their work duties as of 16 March, without pay. This is because labour law is based on the principle of no work, no pay.

In the case of existing employees who continue to be employed:

• If employees fail to submit proof by 15 March, they may initially continue to carry out their duties.
• However, as soon as the health authorities issue a ban on entering the workplace and/or carrying out their duties and this ban comes into effect, these individuals will also no longer be able to continue their work. Their entitlement to receive their pay will also cease at this point.
• The employer may issue the employees with a warning. This is because it is fair to assume that the employee may be positively influenced by the threat of the consequences their actions will have on the continuation of their employment.
• If, in response to the warning, the employees still fail to provide proof of vaccination or recovery or a certificate of medical contraindication, dismissal may be considered as a last resort.
• Prior to terminating an employment contract, the employer must always carefully weigh up the interests involved and determine whether dismissal is proportional. The decision should encompass a number of considerations, including the following aspects:
  • duration of employment
  • deadline for compulsory vaccination
  • the legislator’s decision that it is also possible to perform the work without vaccination under certain conditions
  • possibilities of working at a distance from patients, including working from home