The dismissal of a medical assistant who was not vaccinated against the coronavirus to protect patients is legal according to a judgment by the Federal Labor Court (BAG). The highest German labor court decided on Thursday in Erfurt in a case from Rhineland-Palatinate (2 AZR 309/22).
The woman had argued that the dismissal was a violation of the prohibition of discipline according to the Civil Code. The federal labor judges denied this. It is about a ban on discriminating against employees if they exercise their rights in a permissible manner.
The plaintiff, who failed in court, was employed as a medical assistant in a hospital. However, the verdict in your case is likely to have an impact on comparable cases nationwide. Vaccination requirements in the medical field were highly controversial during the corona pandemic.
According to the court, the plaintiff had cared for patients on various wards of the hospital in Rhineland-Palatinate. Despite offers from her employer, she was not prepared to be vaccinated against the corona virus. The medical assistant had argued that she was not obliged to submit proof of vaccination or recovery before the obligation to submit proof of vaccination or recovery came into effect on March 15, 2022.
The main motive for the termination was not the plaintiff’s refusal to “subject to vaccination against Sars-CoV-2, but the intended protection of hospital patients and the rest of the staff from infection by unvaccinated medical professionals,” argued the Second Senate of the Federal Labor Court. There is no violation of the prohibition on taking measures because the “necessary causality between the exercise of rights by the employee and the disadvantageous measure taken by the employer” is missing.
According to the judges in Erfurt, it is legally irrelevant that the termination took place before the statutory obligation to vaccinate came into force. “Even from a constitutional point of view, there are no concerns about the effectiveness of the termination,” said the Senate. According to his own statements, due to a lack of prerequisites in this case, he did not have to decide whether a dismissal due to a lack of willingness to vaccinate was possibly socially unjustified.
