A nurse, who has had to provide proof of immunity under the Infection Protection Act since March 2022, presents the employer with a certificate of immunity downloaded from the Internet. The hospital quits without notice – rightly so?
The Lübeck Labor Court decided (file number 5 Ca 189/22) that the submission of a certificate of incapacity for vaccination downloaded from the Internet, which was created without a medical examination, constitutes a serious violation of the secondary obligation of the employment contract based on Section 20 a Paragraph 2 of the Infection Protection Act. The employer may terminate the contract without notice because of the attempted deception; any measures taken by the health department do not have priority.
A hospital informed its employees about the facility-related vaccination obligation applicable as of March 16, 2022 and asked the employees to submit one of the four proofs of immunity required by the Infection Protection Act by March 15, 2022; otherwise no further employment can and will take place. Proof within the meaning of the Infection Protection Act is 1) proof of vaccination, 2) proof of convalescence, 3) medical certificate of pregnancy or 4) medical certificate of inability to vaccinate for medical reasons.
A nurse who had been employed there for 18 years presented the hospital with a certificate of incapacity to be vaccinated, and the document also showed a doctor signing it. However, it turned out that the employee had downloaded this certificate from the Internet without any medical contact. The hospital saw itself deceived, informed the health department, which confirmed the inauthenticity, and finally resigned without notice because of the destroyed relationship of trust. The nurse brought an action for protection against dismissal.
The labor court agreed with the employer, declared the termination without notice to be effective and dismissed the lawsuit. By presenting the online certificate, which was not based on a medical examination, the nurse tried to deceive the employer about an alleged incapacity to be vaccinated. This is a serious violation of the secondary employment contract obligation arising from the Infection Protection Act to present a real proof of immunity and basically represents an important reason for termination without notice according to Section 626 Paragraph 1 of the German Civil Code.
Before downloading the certificate, there was neither a personal nor a virtual medical assessment. This also made it clear to the nurse that it could not even begin to be a proper medical certificate of an inability to be vaccinated for medical reasons.
It is the task of the health authorities to make decisions under public law in the event of violations of the Infection Protection Act, for example to impose fines or to order medical examinations in the event of doubts about authenticity. However, this does not result in a ban on measures or a ban on dismissal for employers, but rather the power of action of the health authorities and that of the employer stand side by side. Because the obligation to prove immunity according to the Infection Protection Act also represents ancillary obligations in the employment contract, which the employer may sanction himself.
This also follows from the fact that a health department is not allowed to take any labor law measures. From the point of view of the judges, it was irrelevant that the employer had also forwarded the certificate, about which he himself had doubts, to the health department for verification. This does not create a blocking effect of the Infection Protection Act.
The announcement by the hospital that it would no longer employ employees who did not present valid proof within the meaning of the Infection Protection Act by March 15, 2022 does not constitute an unlawful threat, but rather that non-employment without proof is covered by the employer’s right to issue instructions. The employee’s lack of insight, even during the process – who had claimed that it was only a “provisional” certificate – meant that, even taking into account all the interests of the individual case, no milder means such as a warning could be considered. Even the almost two decades of employment did not help here.
Attorney Dr. Alexandra Henkel is a specialist lawyer for labor law, business mediator and business coach.
(This article was first published on Thursday, May 05, 2022.)
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