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Treatment by employers of unvaccinated employees

Now that employees in many companies in Germany are able to be vaccinated against COVID-19 by their company doctors, this is giving hope to employers that there will be a ‘return’ from the home office and a normalisation of business processes. At the same time, however, questions have arisen in relation to the treatment of unvaccinated employees under employment law.

Is there a requirement for vaccination against COVID-19?

There is currently no legal requirement for vaccination against COVID-19. Whether or not it is possible for an employer, by exercising its right to give instructions, to require its employees to be vaccinated against coronavirus is an issue that has to be evaluated critically and on a case-by-case basis. This is because an employer’s right to give instructions is not unlimited but, instead, must be consistent with the exercise of reasonable discretion and, in particular, comply with mutual consideration obligations. Arguments in favour of a vaccination requirement would appear to be that, in this way, an employer would be complying with its duty of care and obligation to protect vis à vis its employees in order to preserve health in accordance with Sections 241(2), 618 of the German Civil Code and Section 3 of the German Occupational Health and Safety Act because this would reduce the risk of infection. 

However, against the background of the serious encroachment on basic employee rights (in particular, the right of self-determination and the right to physical integrity), currently, for the most part it is considered that an employer’s right to give instructions does not normally cover a vaccination requirement. At any rate, this applies to ‘ordinary employment relationships’. Yet, as regards ‘special employment relationships’ such as, e.g., in the area of care services and with healthcare professionals who are in close contact with risk patients, the debate is about whether or not, by way of exception, the conflicting interests should be weighed up differently when an employer, for example, as an operator of a hospital, a doctor’s surgery or a care home (for the elderly) has protection obligations vis à vis third parties, e.g., its patients. 

The close physical contact here means that there is not only a particular risk situation, but also that these groups of individual employees are essential for maintaining the health care services. Medical centres and care facilities have to ensure that, in accordance with the current state of medical science, all the necessary measures have been taken to prevent infections and the further spread of pathogens. 

Here, within the scope of discretionary decisions, there are therefore good reasons for applying other criteria when exercising the right to give instructions. Since discretionary decisions - as always - are taken on a case-by-case basis, in medical and care settings an instruction by the employer to get vaccinated with the appropriate justification would be completely reasonable and legitimate. This would apply, in particular, if on account of their professional activities the employees are privileged with respect to vaccination and, by contrast, the people with whom they have contact are not.

Employees who do not follow the employer’s instruction would expose themselves to the risk of getting a warning (that may be subject to judicial review). Should the instruction be unlawful then employees would not have to follow it and such a warning would then be invalid. Should an employer thus mistakenly assume that it may order employees to be vaccinated and stop employing an unvaccinated employee for failing to do so then the employer would be obliged to continue paying remuneration even though the employee had not performed their work. The employee would, in turn, bear the risk that a warning would be justified, or even risk dismissal on the grounds of refusal of performance. 

Recommendation: Therefore, it is advisable to have the specific risk in an individual case assessed by a lawyer. It remains to be seen how case law will develop with respect to the right to give instructions in such cases.

Will there yet be a statutory vaccination requirement?

It should be borne in mind that for employment relationships in the health care sector there are already statutory vaccination requirements, e.g., as part of the Measles Protection Act, which came into force in Germany on 1.3.2020. Since the people covered by the legislation, in some cases, are not able to protect themselves from measles (e.g., because they have an immune system that is too weak) they have to rely on the other people in their immediate environment to show solidarity and get vaccinated. 

The compatibility of a statutory vaccination requirement with the Basic Law is an issue with which the Federal Administrative Court has already engaged intensely, back in 1959 (with respect to smallpox vaccination). Accordingly, a vaccination requirement for highly infectious diseases that pose a serious risk to the life and health of other people is deemed to be permissible. It would thus be possible for the Federal Ministry of Health to make use of its right, which is regulated in the Infectious Diseases Protection Act [Infektionsschutzgesetz, IfSG] (Section 20(6) IfSG), and also impose a vaccination requirement with a view to curbing COVID-19.

An employer’s right to ask questions

The newly introduced Section 23a IfSG, which expressly allows employers to ask employees about their vaccination status, only covers particular professional groups in the health care sector. According to this provision, for example, directors of hospitals or care services (Section 23(3) IfSG) are allowed to request proof of the vaccination status of their employees. However, case law likewise acknowledges that employers have a right to ask questions: “if their interest in the answer to a question is justified, fair and reasonable as well as protectable with respect to the performance of the employment relationship and if the employee’s interest in keeping their data confidential does not override the employer’s interest in collecting such data”. 

Consequently, for reasons of the duty of care on the part of the employer and to lessen the risk of infection in business operations and when performing work that is owed, a justified request for information by the employer about an employee’s health status is generally reasonable. If, in a specific case, the weighing up of interests results in the employer’s interests predominating and the employer having the right to ask questions about vaccination status then it would be incumbent on the employee to provide truthful information.

Other measures by the employer

Against the background that, up to now, employers have normally not been able to require their employees to be vaccinated, although employers do have to ensure that the unvaccinated do not constitute a risk for other employees and for third parties, other measures by the employer should also be considered. First of all, it would be possible to rede-ploy an unvaccinated employee to a different but equivalent area of activity that is commensurate with their abilities, or to another location. Besides paid leave, it is also conceivable that there would be cases where the employees concerned could ultimately no longer remain permanently employed so that, if the criteria have been fulfilled, the consequence could be dismissal due to personal circumstances. 

Please note: Employers could pay a ‘vaccination bonus’ to those willing to be vaccinated, e.g., by means of a special one-off payment, vouchers or extra days of leave. Although, this bonus may not be granted solely to the unvaccinated as an incentive to get a vaccination. Furthermore, it should be noted that any existing works councils will, in any case, have a right of say because such a bonus would be subject to co-determination regulations.

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