Published 20 June 2022
A much-discussed issue having arisen in connection with the Covid-19 pandemic is whether and under what conditions employers can require their employees to get vaccinated against Covid-19. The ASG Vienna has now recently handed down a ruling in a case where employees were dismissed for not wanting to get vaccinated against Covid-19.
The claimants’ job was to provide socio-psychological services in hospitals and nursing homes. The requirement for employees to be generally willing to get vaccinated was also included in guidance issued by the employer in January 2021. The claimants were already employed at this time. The employer provided information about the Covid-19 vaccination and its importance for the job in May 2021.
The employer gave the claimants time to think until 30 September 2021, stating that if they were not willing to get vaccinated against Covid-19, their employment would be terminated. With effect from 8 November 2021, persons were only allowed to visit patients in hospitals, nursing and retirement homes if they complied with the 2G rule (vaccinated or recovered). Even before this rule came into effect, some establishments had made being vaccinated against Covid-19 a prerequisite for gaining access to the premises. The employees were resolute in their decision not to get vaccinated against Covid-19, resulting in their employment being terminated with effect from 31 December 2021.
The claimants contested the termination claiming, among other things, that it was wrongful, basing their case on the seemingly not unjustified assertion of claims arising from the employment and disputed by the employer (section 105(3) no. 1 lit. i ArbVG). The ASG Vienna rejected the claim that the termination was wrongful. It ruled that individuals are naturally free to decide whether to get vaccinated themselves and cannot be forced to do so by their employer. At the same time, however, the claimants were unable to perform their core duties on site at the establishments in question for a period of time without getting vaccinated, as this would have been against the law, and there was no way of knowing how the rate of infection would develop.
It was entirely conceivable that certain establishments would in future require persons time and again to comply with the 2G rule before being allowed to enter the premises. The claimants were therefore in no position to be able to fulfil their contractual obligations to the same extent as before the pandemic, which also had a detrimental effect on their employment. The termination was therefore lawful.
This ruling is not yet final and can still be contested in the court of appeal.
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