No written warnings (Abmahnung) for employees refusing coronavirus vaccination

Refusing to be vaccinated against coronavirus could not result in a written warning.

In principle, the employer was not entitled to issue a written warning to the employee for not providing proof of immunity to COVID-19 (vaccination, recovery or medical certificate).

A nursing home had issued a written warning to an employee because she had not provided proof of her immunity to COVID-19 (vaccination, recovery or medical certificate). The employer had also released her from work without pay. The employee then filed a lawsuit for the withdrawal of the written warning and for payment of the remaining salary for March 2022.

The court ruled as follows

Written warning: The written warning was unlawful. It is true that the employee had breached an ancillary obligation under her contract of employment by not submitting the proof. However, it was her free decision, protected by the German constitution, not to be vaccinated. A written warning that effectively puts pressure on her to be vaccinated is disproportionate. The employer was therefore not allowed to issue a written warning.

Remuneration: The employee’s claim for the remaining remuneration was rejected. Although she was unable to work for part of the month due to illness, she would not have been allowed to work even if she had not been ill, as she had not provided the required proof. Due to the lack of proof, the employer was entitled to release her from work.

The court made it clear that employers can, under certain conditions, demand that their employees provide proof in accordance with § 20a IfSG (Infection Protection Act). If this proof is not provided, they may keep the employees away from work without a warning.

Federal Labour Court (BAG, judgment of 19 June 2024, ref. 5 AZR 192/23).