Is it permissible to dismiss unvaccinated employees with 2G in the company?

More and more companies are introducing the 2G rule in the workplace. Employees in these companies are therefore required to either be vaccinated against coronavirus (Sars-CoV-2) or to have already recovered from it. Many employees are now wondering whether their employer can simply dismiss them if they have neither been vaccinated nor recovered. In this article, we want to explain clearly and simply how such a dismissal should be assessed.

2G in the workplace

A 2G regulation in the company is applied by the employer either voluntarily or on the basis of a legal obligation, which may exist in medical facilities, for example. This is intended to prevent employees from contracting the Sars-Cov-2 virus from third parties with whom they have contact.

However, 2G in the company does not give the employer a direct right to dismiss employees who have neither been vaccinated nor recovered. Likewise, there is no direct entitlement to ask employees about their vaccination status.

When can I be asked about my vaccination status?

Whether your employer is allowed to ask you about your vaccination status at all depends on your field of work. Up to now, employers have only been entitled to ask this question in certain sectors. These occupational fields are specified by law and include daycare centers, schools, nursing and certain professions in the healthcare sector.

What applies to other sectors?

In practice, internal 2G rules often mean that employers cannot deploy employees whose vaccination status is unclear to third parties. The same applies to any recovery status of employees. These employees cannot be deployed for customer contact, for example.

As an employee who is neither vaccinated nor recovered or does not wish to provide any information about this, you will then be deployed elsewhere, for example in a home office.

Is dismissal for conduct-related reasons possible if the employee can only be deployed for customer traffic?

In such cases, dismissal for conduct-related reasons could be an option. After all, the employee's behavior has meant that he can no longer be employed. However, it is questionable whether the employee has breached an employment contract obligation at all by not getting vaccinated.

Our assessment is that this is not the case. Employees are ONLY obliged to disclose their vaccination status in occupational groups explicitly named by law. For employees in other industries, there is no legal obligation to provide information about their vaccination status or recovery from coronavirus, let alone to be vaccinated. The introduction of 2G rules in the company is also generally not mandatory in these industries. Rather, this is an individual decision by the companies, the legality of which is the subject of heated debate among lawyers.

Is dismissal for operational reasons possible if the employee can only be deployed for customer traffic?

Dismissal for operational reasons would be an option if the employer could no longer deploy the employees for customer contact under the 2G regulation in any other way. For example, not in the context of home office work.

However, such a case is subject to strict legal requirements, which are very rarely met. The employer is obliged to prove in court that the employee's job has been lost. He must also prove that 2G is legally effective in his company. This is highly questionable, especially in sectors that are not mentioned in any law.

In addition, there are two further legal pitfalls for employers:

• Dismissal for operational reasons may only be used as a last resort.
• It is unlikely that a job has been effectively eliminated at all if the 2G model has only been applied in the company for a short time.

Protection against dismissal and 2G

If the measures to combat the coronavirus are discontinued, 2G regulations in companies would also become ineffective. If this were to happen before the end of the notice period, the employer would be obliged to offer the employee new employment. Otherwise, dismissal for operational reasons would no longer apply.

The Dismissal Protection Act applies to all companies that regularly employ more than 10 full-time employees. It applies to every employee who has been employed for more than six months. The protection against dismissal also makes it difficult for companies to dismiss employees. Whether vaccinated, recovered, unvaccinated or not recovered!

Our lawyers will advise you in detail on the subject and also represent you in a dismissal protection action. Get in touch with us.