Economics: ROUNDUP 2 / Federal Constitutional Court: Nursing vaccinations are legal

KARLSRUHE / BERLIN The compulsory corona vaccination of nursing and medical personnel is legal. The Federal Constitutional Court in Karlsruhe has dismissed a constitutional complaint against so-called facility-related compulsory vaccination. Politicians such as Federal Health Minister Karl Lauterbach (SPD) welcomed the decision on Thursday. Patient advocates, however, expressed doubts as to whether a requirement for in-house vaccination could provide the best possible protection against infection. The German Supreme Court argued in its ruling that the protection of so-called vulnerable groups is constitutionally more important than the violation of the fundamental rights of workers in the care and health sector. True, there has been a violation of physical integrity. Nevertheless, the only alternative is to stop working or change jobs. However, the legislator’s considerations of “giving priority in all respects to the protection of vulnerable people from the decision to free vaccinations” cannot be questioned. (Az. 1 BvR 2649/21, decision of 27 April 2022) According to the notification, the further development of the pandemic also does not constitute a reason for departing from the assessment. Expert societies believe that the disease course of the omicron variant of the coronavirus is milder on average and that vaccines are less effective than earlier variants of the virus – but “the composition of the risk groups and their substantially higher risk have not changed.” Lauterbach feels confirmed by the decision: “The state is committed to protecting vulnerable groups,” he said. The minister thanked all institutions that implemented this compulsory vaccination. “They played a large role in preventing more deaths from the sharp omicron wave.” The head of the German Patient Protection Foundation, Eugen Brysch, pointed out that infertile immunity does not exist despite vaccinations. “An effective method would be a mandatory personnel testing system in medical and nursing facilities,” he said. “Because with the daily pre-service tests, it is possible without exception to keep the virus outside the door.” The obligation to vaccinate related to the facility also remains an administrative and labor law structure. “Even the data is insufficient. After all, recovered and vaccinated workers are not registered separately. ‘ Social associations continue to call for the requirement for corona vaccination to be lifted. While a Federal Constitutional Court ruling states that certain professional groups may be subject to compulsory immunization, according to the League of Free Welfare Workers, it says nothing about the usefulness of compulsory immunization. The fact that only healthcare professionals need to be vaccinated does not make sense as those to be protected would still be in contact with those who are not compulsorily vaccinated. Regulations can no longer be communicated to workers if almost all protective measures are lifted at the same time. From a league perspective, mandatory vaccination would only have an effect in relation to the general vaccination obligation. Due to the political failure of the general vaccination obligation, the German Hospital Association also believes that a political decision to suspend the facility-related vaccination obligation is necessary. One has to distinguish between a purely legal and political assessment, said Gerald Gass, director general of the Rheinische Post (Friday). The special vaccination requirement is designed to protect the elderly and weakened from coronavirus infection. They are particularly at risk of serious illness or death. Employees of nursing homes and clinics, doctor’s offices and outpatient clinics, midwives, masseurs and physical therapists had to prove by March 15 that they were fully vaccinated or had recently recovered. New employees needed proof from March 16. If he is missing, the facility must inform the health department. It may prevent injured persons from entering their workplace or from continuing to work. There is an exception for people who cannot be vaccinated for medical reasons. According to industry information, the vaccination requirement has not caused a staff shortage, but there are open legal questions about implementation. The German Nursing Professionals said at a hearing in the Bundestag at the end of April that there would be no fear of any serious retirement and thus a shortage of supply. The Federal Association of Private Social Service Providers explained that there were no losses of tens of thousands of workers. The gradual introduction of compulsory vaccinations contributed to this. However, legal clarification is needed on issues related to work and liability – for example, whether nursing homes may be subject to recourse claims if they have used tests and masks for unvaccinated workers. The German Association of Cities indicated that entry and operating bans would probably not be introduced until August or September, but the legal basis for compulsory vaccination would then expire on December 31. The legislator should therefore consider at an early stage whether bans should actually be introduced. In February, the first senate of the Constitutional Tribunal did not suspend the urgent requirement of in-house vaccination. However, he critically noted that the law of the time did not contain anything more detailed about proof of vaccination and recovery. It only refers to the Regulation with further references to the websites of the Paul Ehrlich Institute and the Robert Koch Institute. As the law was changed and a new section was introduced specifying the certificate of vaccination and convalescence, the court did not comment on this issue anymore. The enactment of a special vaccination requirement in the Bundestag and Bundesrat sparked a wave of lawsuits: Karlsruhe received dozens of constitutional complaints from hundreds of plaintiffs. Most of them are unvaccinated workers and facility managers who want to continue hiring unvaccinated personnel. By the end of June at the latest, the discussion should resume: then the federal and state health ministers want to discuss whether there should be a new attempt at compulsory vaccination from the age of 60.

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