Although there is still a shortage on coronavirus vaccines, a discussion about compulsory vaccination came up very quickly. Many employers ask themselves what rights and obligations they have when it comes to the vaccination of their staff. We assess the current legal situation in Germany below:
Education and information obligations of the employer
Employers have various information obligations towards their staff, based on general statutory law. Regarding corona and the workplace, stricter information obligations also with regard to vaccinations will have to be assumed in the health care sector, especially where there is an increased risk of infection due to the activity performed by the employees, such as for doctors and nursing staff in hospitals and care facilities. For other groups of employees, there are no guidelines yet as to if and how employers must inform their staff on vaccination possibilities. For these groups, employers should currently focus on observing the existing protective regulations, particularly from the Occupational Health and Safety Act and the SARS-CoV-2 Occupational Health and Safety Standard.
May the employer instruct vaccinations?
Until now, a legally regulated vaccination obligation for employees only exists in the healthcare sector and only for measles vaccination. Due to the lack of an explicit statutory regulation, a right of the employer to instruct coronavirus vaccination could only be based on general statutory provisions, according to which the employer is entitled to issue instructions with regard to the orderly conduct of the employees in the company. Furthermore, the employee is obliged to respect the interests and concerns of the employer under the law.
The protection of colleagues, customers, patients, care home residents and visitors from the infectious virus is, of course, a legitimate aim of the employer. However, another prerequisite for allowing employers to instruct vaccinations is that the vaccination is suitable for achieving the legitimate aim. This can only be assumed though, if a vaccinated employee poses less of a risk or no risk at all to others. Considering the lack of clinical studies on this so-called sterile immunity, there is no certainty at the moment as to whether the aim of the employer to protect others can be obtained through vaccinations of his staff.
In the weighing of employer and employee interests it must be taken into account that instructing a vaccination significantly interferes with the employee’s constitutional rights to physical integrity. In the health and care sector, also the interests of patients and residents of care facilities to not become infected with the coronavirus play a role. These groups are particularly vulnerable. Therefore, in the healthcare sector – unlike in other industries – it is quite possible to argue that employee interests should take a back seat to the interests of the patients and the employers and vaccination can therefore be made compulsory.
These principles, however, only apply if the coronavirus vaccination also provides protection for others, since otherwise it is up to each employee to decide to what extent he wants to take precautions for his own health. Therefore, employers will not be able to enforce compulsory vaccination in the company for now. This even applies to the healthcare sector as long as there is no reliable knowledge about third-party protection through the coronavirus vaccination. Rather, only voluntary efforts can be made here and employers should try to strengthen the vaccination commitment within the staff in other ways (e.g. through information and education campaigns).
May the employer ask employees about their vaccination status?
Considering the risk of infection, asking an employee about an acute coronavirus infection is likely to be permissible without further justification. However, the survey of vaccination status is only considered lawful if it can provide meaningful results (according to the state of the art in medicine) with regard to decision-making. Thus, the question of sterile immunity is probably decisive here as well. If there (still) is no reliable knowledge regarding the protection of third parties through the vaccination, even a right of the employer to ask for the vaccination status will have to be rejected. A different result is only conceivable in individual cases in hospitals or care facilities for employees with direct patient contact.
However, this legal framework does not make it impossible for employers to even ask their employees about their vaccination status concerning corona. But they have to take into account that when asking such question, employees are not obligated to answer at all or to answer truthfully. They may either refuse to answer or make use of their “right to lie “. In neither case may the employer derive negative consequences towards the employee. Moreover, in all matters related to vaccination and questions, co-determination rights of the works council and data protection should be taken into consideration as well.
When it comes to the corona pandemic, the answers to employment law questions often significantly depend on medical and scientific knowledge. As long as there is no reliable information on third-party protection through a vaccination, employers will not be able to enforce compulsory vaccination within the company and will not be entitled to demand truthful answers from their staff about the vaccination status. Exemptions currently only apply in a very limited scope in the health care sector. Therefore, employers are currently well advised to pursue a voluntary approach to vaccination.
For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Workplace Law at email@example.com or visit www.pwwl.de.