From 16 March onwards, mandatory vaccination will apply in Germany. If you work in a medical or nursing facility and perhaps even have staff responsibility there, you will have new obligations from this date. In this blog article, you can find out exactly what they are, who they affect, what consequences you can expect if you do not comply with them, and how you can easily fulfil your obligations digitally. 

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The most important facts in a nutshell:

• Compulsory vaccination in the health sector will be introduced in Germany from 16 March 2022.
• It is intended to protect particularly vulnerable people, relieve hospitals and guarantee health care.
• Compulsory vaccination affects everyone working in the health sector - not only nurses in direct contact with patients.
• Anyone working in the health sector must provide proof of vaccination or convalescence, or a medical certificate confirming that vaccination is not possible, by the end of 15 March.
• From 16 March onwards, employers in the health sector must inform the health authority responsible for them if evidence is missing or its authenticity is in doubt.
• Employees who do not comply with the obligation to vaccinate must expect to be banned from care or work or to receive a fine.
• Employers who do not fulfil their documentation and reporting obligations must expect fines and a loss of image.

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The background - Why does compulsory vaccination in the health sector affect you?

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Covid-19 has been accompanying our lives for two years now. During this time, it has spread rapidly throughout the world. Meanwhile, the infectious disease is one of the most contagious in humans. In particular, the elderly and those in need of care, as well as those suffering from acute or chronic illnesses, are at high risk of a severe or even fatal course of the disease due to Covid-19. Vaccination against the infectious disease has proven to be a reliable protection against a severe course. To protect those most at risk, reduce the burden on hospitals and ensure health care delivery, a facility-based mandatory vaccination policy will be implemented in health care settings beginning March 16.

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Verification and reporting obligation - What do you have to implement in the future?

As an employee in a medical or nursing facility, you are obliged to provide proof. By the end of 15 March, you must submit one of the three certificates to your employer:

• a vaccination certificate,
• a proof of recovery, 
• a medical certificate confirming that you are not allowed to be vaccinated against Covid-19. 
  

If your certificate expires after 16 March, you must provide new proof within one month. For example, if your recovery certificate expires during this period, you will need to provide proof of full vaccination within one month. Note that you are currently only considered recovered for 90 days after a positive Corona test. 

As an employer in the health sector, you have a duty to report. If you have employees in your company who have not provided you with proof by 16 March or if you doubt the authenticity or accuracy of the content of a certificate, you must inform the competent health authority. 

When checking the certificates, pay close attention to their validity: If a certificate expires after 16 March, the employee must present a new, valid certificate within one month. If this does not happen, or if you doubt the authenticity of the certificate, you must inform the health office about the case. If employees are on maternity leave, parental leave, full leave for nursing leave, sick leave or are subject to an employment ban after 16 March, they are not in your company after the deadline and are therefore not actively working. For them, the vaccination obligation only comes into effect when they return to the company. 

If you are self-employed, you have to show your vaccination certificate in case of an inspection by the public health department. Be sure to observe the rules of the different federal states: In some federal states, as a self-employed person, you have to actively approach the health office responsible for you and present your certificate to them. 

On the RKI website, you can find the health office responsible for you. 

The verification and reporting obligation currently applies until 31 December 2022. 

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In detail - Who is affected by compulsory vaccination?

Compulsory vaccination does not only apply to nursing staff. As an institution-related vaccination obligation, it applies to all employees of certain institutions. The law does not distinguish whether you have direct contact with patients as a nurse or hardly any contact as an electrician. The vaccination obligation does not only apply to permanent employees: Everyone who works in a facility on the following list must comply with the vaccination requirement - including, for example, interns, students, trainees, volunteers, temporary workers or persons with contracts for work or services, such as cleaning and kitchen staff or security guards. 

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In future, compulsory vaccination will apply in the following institutions - if you work in one of them, you must be vaccinated: 

1. Hospitals
2. Facilities for outpatient surgery, 
3. Preventive and rehabilitation facilities, 
4. Dialysis facilities, 
5. Day clinics, 
6. Maternity facilities, 
7. Treatment or care facilities comparable to any of the above, such as hospice services, specialised outpatient palliative care (SAPV) or blood donation facilities, 
8. Medical and dental practices, 
9. Practices of other health care professions(on the website of the Ministry of Health you can find a precise definition of these professions) 
10. Public health service facilities where medical examinations, preventive measures or outpatient treatment are carried out, 
11. Emergency services, 
12. Social paediatric centres according to § 119 SGB V, 
13. Medical treatment centres for adults with mental disabilities or severe multiple disabilities according to § 119c SGB V, 
14. Vocational rehabilitation facilities according to § 51 SGB IX and vocational rehabilitation services, 
15. Assessment and testing services that operate on the basis of the provisions of SGB V or SGB XI, 
16. Fully and partially inpatient facilities for the care of elderly, disabled or persons in need of care or comparable facilities, 
17. Outpatient care facilities according to § 72 SGB XI,
18. Outpatient care services that provide intensive outpatient care in institutions, residential groups or other communal living arrangements, 
19. Companies that provide assistance services according to § 78 SGB IX, 
20. Companies that provide services of interdisciplinary early diagnosis and early intervention according to § 42 paragraph 2 no. 2 SGB IX and § 46 SGB IX in conjunction with early intervention support or curative education services according to § 79 SGB IX, 
21. Transport services that transport persons treated, looked after, cared for or accommodated there for facilities according to No. 16 or that provide services according to § 83 Para. 1 No. 1 SGB IX (patient transports, possibly also taxi companies), 
22. Beneficiaries who employ persons for the provision of corresponding services within the framework of a personal budget according to § 29 SGB IX. 

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Persons who only need to be in the facilities listed above for a few minutes, such as postmen, are not subject to compulsory vaccination. Those who perform one-off or non-regular tasks in one of the above-mentioned facilities are also not subject to compulsory vaccination. For example, if you are a craftsperson and you work in an establishment subject to compulsory vaccination on a one-off or irregular basis, this obligation does not apply to you. 

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Consequences under labour law - What do you have to do if you breach your duties?

If, after 15 March, you have not received proof from all your employees working in your company at that time that they have been vaccinated or have recovered, or if you have not received a medical certificate confirming that vaccination is not possible, you must immediately notify the competent health authority and forward the necessary personal data to it. The scope of the data to be forwarded is defined in § 2 number 16 IfSG. Even if you have doubts about the authenticity or accuracy of the data, you must inform the health authority. If you comply with this obligation, you are not committing an administrative offence: in this case, the following consequences only apply to the employee.

The health authority will then look into the case and ask the person to provide proof. If your employee does not comply with this request, the health authority can issue a ban on supervision or activity , which applies to all facilities where vaccination against Covid-19 is a prerequisite for employment. Alternatively, the health authority can initiate proceedings to impose a fine on employees who refuse to comply. 

Until the health authority has decided on a case and has not yet issued a ban on supervision or activity, you can continue to employ the affected staff. Section 20a IfSG does not grant you the right to release or even dismiss them. However, as soon as the health authority has decided that certain employees may no longer work in a medical or nursing facility, the entitlement to remuneration of these persons should cease. The principle of "no work, no pay" applies here. If staff members refuse to provide appropriate proof even after being released from work without continued payment of remuneration, termination with prior warning may be considered as a final consequence. However, this cannot be assessed in general terms: Whether the conditions for dismissal are met must be clarified by a competent court.

If you want to hire new employees after 16 March, they must provide proof of employment and are otherwise not allowed to work or be employed in your company. If you employ an employee despite a ban on supervision or employment, you can expect a fine of up to 2,500 euros . You may also be fined if you fail to report missing or doubtful evidence. In addition to the fine, you must not forget that you are also damaging the image of your company and thus jeopardising your economic future. Employees and interested applicants may turn away from you, patients may decide to go to another company for care, if it becomes public that you continue to employ unvaccinated staff. The health authorities can carry out unannounced inspections at any time. For this reason, you should have all the necessary documentation up to date and ready to hand. 

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Tips for digital implementation

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As an employer in a medical or nursing facility, you should already prepare for the facility-related vaccination obligation. Inform your employees about their upcoming obligations to provide proof and think about how you yourself would like to comply with your documentation and reporting obligations.

Programmes such as Excel, for example, can be quickly considered. However, with this method you will spend a lot of time creating lists of your employees and then keeping them up to date. Dates such as expiring certificates must be kept in mind. Otherwise, you run the risk of not fulfilling your reporting obligations. In addition, you must not forget data protection: Lists of who has had their vaccination and when, or whose convalescent status expires and when, contain sensitive health data according to Article 9, paragraph 1 of the GDPR. You are allowed to process this data according to Article 26, Paragraph 3 BDSG. However, you may only collect data that is actually needed according to § 20a IfSG and must ensure that it is adequately protected. 

Institutions that already suffer from thin staffing levels will be put under pressure by such an implementation of the duty, as it will create a further time and financial burden. 

It is easier with automated solutions such as Sawayo: 

• Your employees scan their certificate with the employee app or the browser version of Sawayo. 
• The softwareautomatically creates a clear list with all the necessary data for you and the health authority. 
• In real time, you can see who has been vaccinated and when, and who is still missing this proof. 
• You or your employees can check the authenticity of all certificates with the employee app. Sawayo uses the same database as the CovPassCheck app of the RKI. 
• If you are inspected or have to report missing or doubtful certificates to the health authority, you can download the required overview in common formats. 
• You do not need to keep deadlines in mind: Sawayo warns you before a certificate loses its validity. 
• You don't have to worry about data protection either: Sawayo stores all data on servers in Germany in accordance with data protection regulations. 
• Under the PpSG, Sawayo is eligible for funding.
  

As compliance software, Sawayo is an expert when it comes to employer compliance. We know from our own experience as entrepreneurs how difficult it is to comply with all obligations and at the same time have the time to run a functioning company. That's why, with Sawayo, we are happy to relieve you of the entrepreneurial duties and give you back the time to concentrate on your core business. 

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Conclusion

In order to protect particularly vulnerable groups in Germany, the facility-based vaccination obligation will be introduced from 16 March 2022. By this date, employees in medical and nursing facilities must inform their employers of their vaccination or convalescence status. As an employer, you must report missing or doubtful certificates to the health authority. Because the health authority can inspect you unannounced at any time, you must have up-to-date documentation on the vaccination status of your staff at hand. If you do not comply with this obligation, you will be fined and your company's image will be tarnished. 

Programmes such as Excel do not take any of the work out of your documentation and reporting duties. On the contrary, in addition to your core business, you will be busy creating lists, documenting and searching for controls. Sawayo gives you back time through automatically generated lists and reminders of expiring deadlines and supports you in fulfilling your employer obligations.

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