For many months, the so-called 3-G-requirement applied at German workplaces. According to this, employees were required to be either vaccinated against Covid 19, recovered or tested. In this context, the case of a German national league soccer coach who used a forged proof of vaccination and was subsequently fired became publicly known and was widely discussed throughout the local press. Similar cases also appeared in German labour courts.
In the case at hand, the employee had been employed in company health care. In October 2021, the employer informed all employees, that from November onwards, only vaccinated employees would be allowed to attend on-site customer appointments. The employee told her employer that she had been vaccinated and presented her proof of vaccination to the HR department. According to the employer’s assertions, the following verifications led to the conclusion that the vaccine batches shown in the employee’s vaccination certificate had only been used after the date stated in the employee’s certificate. Thereupon, the employer terminated the employment relationship without notice.
The local labour court of Cologne, Germany, ruled that this dismissal was justified (23 March 2022 – 18 Ca 6830/21). The employee had not been able to refute the employer’s allegation that the submitted proof of vaccination was incorrect. The court found that the employee’s disobedience of a vaccination obligation with regard to customer appointments constituted a severe breach of duties arising from the employment relationship. A notice period was not required as the employee forfeited the trust necessary for any continuation of the employment. A dismissal was also not precluded by data protection regulations. In particular, the employer was entitled to compare the data in the vaccination certificate presented by the employee with the publicly available data of the vaccination batches in compliance with his control obligation regarding the 3-G-requirement.
As the 3-G-requirement at the workplace expired at the end of March 2022, employers were required to delete collected data on vaccination records in the meantime. Accordingly, cases of forged vaccination certificates should become less relevant in practice. Of course, it remains to be seen whether 3-G-requiremets will be re-introduced in the fall.
Key Action Points for Human Resources and In-house Counsel
- If employees present forged vaccination certificates, employers can usually react by issuing a dismissal with immediate effect. Such dismissal must be issued within two weeks since the employer became aware of the forgery. To determine whether a vaccination proof may be forged, employers can match the data from the certificate with public data on vaccination batches.
- Some employers try to maintain 3-G-requirements in the workplace even though the corresponding statutory requirements currently no longer apply. In such constellation, a valid termination of employment due to a forged vaccination certificate may be more difficult, as the employer’s right to even collect and use such data would have to be reviewed as a first step. Nonetheless, a willful lie of the employee and the presentation of falsified documents remains a severe violation of duties and trust per se.