As the corona pandemic continues, there is a glimmer of hope on the horizon. Two pharmaceutical manufacturers - the German company BioNTech and the US manufacturer moderna - have developed corona vaccines and presented their initial studies with an efficacy of 90-95%.
This has already raised various questions for employers. For example, can employees be required to get vaccinated or can they be prohibited from accessing the company without proof of vaccination? In this context, Jörn Kuhn, Cornelia-Cristina Scupra and Annabelle Marceau shed light on the legal aspects of a possible compulsory vaccination.
No compulsory vaccination against SARS-CoV-2 planned in Germany
There is no vaccination obligation in Germany at present. The only exception to this is the measles vaccination recommended by the Standing Committee on Vaccination [Ständige Impfkommission, STIKO] since 1 March 2020. Through the German Act on Protection against Measles and Strengthening Vaccine Prevention (Measles Protection Act) [Gesetz für den Schutz vor Masern und zur Stärkung der Impfprävention], the German Infection Protection Act [Infektionsschutzgesetz, IFSG] was adapted in § 20 (8), (9) IFSG to the effect that proof of vaccination must be provided both in order to access certain facilities and to take up work in such a facility. In its decision dated 11 May 2020, the German Federal Constitutional Court [Bundesverfassungsgericht, BVerfG] confirmed the constitutionality of § 20 (8) and (9) IFSG in a summary procedure.
According to most recent statements of German Health Minister Jens Spahn in the Bundestag on 18 November 2020, the Federal Government is currently not planning a mandatory statutory SARS-CoV-2 vaccination. Here, the focus is rather on voluntary vaccination participation, which would enable a high vaccination rate to be achieved through sufficient sensitisation of the population.
Introduction of a compulsory vaccination against SARS-CoV-2 by the employer?
Apart from the fact that there are currently no plans for a statutory vaccination obligation in Germany, employers may have a considerable business interest in having employees vaccinated due to the current increase in the number of SARS-CoV-2 cases.
However, vaccination represents an intervention in the physical integrity of the individual and can only be justified under criminal law if the person concerned consents to it or if a statutory vaccination obligation exists.
Thus, a compulsory vaccination on the basis of the employer's right of direction cannot be implemented. The employee’s constitutionally protected physical integrity and his general personal rights contradict the exercise of the employer's right of direction. A vaccination obligation also cannot be anchored in a shop agreement. The employer and employees’ side must observe the principles of justice and equity. Accordingly, it is also not possible for them to regulate such an interference with constitutional rights.
This therefore raises the question of whether the employer can deny employees access to the premises if they have no proof of vaccination and if the employer would subsequently be entitled to give them notice of dismissal if they are unable to take up their work. In this context, it is conceivable that the employer can invoke its domiciliary rights with regard to the employee’s orderly conduct and at the same time make access to the company premises subject to conditions. Please note, however, that the exercise of domiciliary rights linked to a vaccination certificate does not necessarily mean that the employee's wage claim lapses. Here, one must decide whether the employee is able to carry out his work without the vaccination (e.g. work from home or in separate areas of the company) or whether there is indeed a reason concerning the person of the employee that prevents him from taking up his work.
Since a vaccination obligation concerns the employee’s orderly conduct and the protection of health, this matter should also be open to co-determination by the works council pursuant to § 87 (1) Nos. 1 and 7 German Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG]. Within the framework of a shop agreement, the issue of a ban on entering the premises, possibly combined with a loss of wages, certainly cannot be agreed, since the right of access to the premises is not subject to co-determination.
Overall, employers are advised to take a phased approach and to initially rely on voluntary vaccination participation and voluntary certification by their employees. In this context, companies can create incentives for voluntary vaccination, for example by paying vaccination premiums.
In the second instance, companies should then examine further measures. Various aspects have to be taken into account - such as the employer's duty of care towards other employees, but also prohibitions of disciplinary measures.
Data protection considerations
Data protection considerations are also important in the overall context. Thus, the first question that arises is whether the employer is even entitled to inquire about the vaccination status of its employees. The right to ask questions is limited only to situations in which the employer has a legitimate interest that merits protection. The fact that information on the vaccination status constitutes particularly protectable health data within the meaning of Article 9 of the General Data Protection Regulation (GDPR) plays a particularly important role in this context.
When weighing up the conflicting interests, the employee's general personal rights, which are protected by the German Constitution [Grundgesetz, GG] must be weighed against the employer's interest in protecting its other employees and other preventative measures (mask, distance, hygiene etc.).
Whether the employer's knowledge as regards the vaccination obligation is necessary to carry out the employment relationship within the meaning of § 26 (1) Federal Data Protection Act [Bundesdatenschutzgesetz, BDSG] may be questionable, especially if the employment relationship can also be carried out independently of the employee’s vaccination status.
With the foreseeable possibilities of a vaccination, it is not only the politicians who have to deal with the questions of "who” will be vaccinated and "when”. Companies are also obliged to develop concepts for work. Data protection issues will also have to be taken into account in this connection.
Our experts are happy to answer any further questions you may have.