The Minister Presidents’ Conference [Ministerpräsidentenkonferenz] met on 10 August 2021. From 11 October 2021 onwards, free corona tests will no longer be offered to citizens. Companies have been urged to support vaccination. Our partner Jörn Kuhn explains what to look out for when vaccinating in the workplace environment and briefly highlights the key employment law points of yesterday's resolution.
Since May of this year, the US Equal Employment Opportunity Commission's website contains clear statements for US companies on how to deal with vaccination (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | US Equal Employment Opportunity Commission (eeoc.gov)). According to this, it is permissible to only allow vaccinated employees access to the company. The payment of incentives to motivate employees to get vaccinated has also been affirmed.
Such clear statements cannot be expected in Germany. The resolution of the Minister Presidents’ Conference reads: the federal government and the federal states call on employers in Germany to support their employees in accepting vaccination offers, in particular by informing employees, creating company vaccination offers by works doctors and giving employees time-off to get vaccinated. In addition, questions concerning data protection arise time and again in company practice.
Vaccination bonus now permissible - works council to be involved
The payment of a vaccination bonus or the granting of other benefits such as days off work have so far been implemented only hesitantly. As long as vaccines were in scarce supply, the payment of such a vaccination bonus could not have been offered equally to all employees. Here, the situation has changed and the excess supply of vaccines means that benefits can permissibly be granted.
However, companies should be aware that this vaccination bonus not only has to be granted to employees who now get vaccinated, but also to employees who have already been vaccinated. If a vaccination bonus is granted, this usually affects co-determination in the company. Although it is the employer who decides whether to grant the bonus, an agreement must be reached with the works council on the allocation mechanisms.
An interesting issue is the matter of proof to the company of the employee’s vaccination if the employee wants to receive the vaccination bonus. Under employment law, it is clear that the bonus can only be paid in conjunction with proof of vaccination. Individual federal state data protection authorities, such as the data protection authority in North Rhine-Westphalia, consider the communication of the vaccination status to the employer - even on a purely voluntary basis - to be impermissible (FAQs on questions and measures taken by the employer to protect against corona infections (nrw.de)). This is generally justified by the fact that it has not been scientifically proven that vaccination prevents infection and thus also the risk of transmission. Hence, the information was not required by the employer.
This view no longer applies, at the latest since yesterday's Minister Presidents' Conference. If, among other things, companies should implement (paid) leaves of absence to take up vaccination offers, then this can already be seen as an incentive, which is expressly desired.
No simple “no” to a vaccination register
The introduction of a company vaccination register has been deemed inadmissible by data protection authorities to date. Operational hygiene concepts should be sufficient and further personal data are not required. The general nature of the statements can no longer be sustained, above all because they are too undifferentiated.
Already now, some countries can only be entered by vaccinated persons. Should the company wish to plan business trips, it needs to know from the employee whether he or she is allowed to actually enter the country. The employer has an overriding interest in knowing the employee's vaccination status. After all, it could easily happen that the employer books a trip where the employee is already sent back at the arrival airport.
At present, the data protection requirements are most likely to be met by an internal company vaccination register, as long as it only actually lists those persons who are obliged to have a vaccination certificate on the basis of their activity. This means that a vaccination register in which all employees are recorded, even if they work from a home office, will be inadmissible.
Employee tests are still being conducted
In addition, the Minister Presidents’ Conference resolved to extend the Corona Occupational Health and Safety Ordinance [Corona-Arbeitsschutzverordnung] once again beyond 10 September 2021. This means that companies are still obliged to have hygiene concepts and to offer tests to employees working on site.
Here, improvements are required from the legislator: it is unacceptable that, after 11 October 2021, the federal government will no longer provide free corona tests to citizens whilst employers are still required to fund tests. In some federal states, tests issued by employers are also readily accepted by third parties, e.g. when shopping. The question therefore arises as to whether the acceptance of such tests should not consequently be discontinued. The corresponding regulations in the respective corona protection ordinances of the federal states would then have to be adapted.
Short-time work benefit and economic aid extended
The Minister Presidents’ Conference also resolved to extend corona aid. The economic aid that has been available until the end of September (Bridging Aid III Plus) and the facilitation of access to short-time work benefit are being extended until 31 December 2021. This also includes any full reimbursement of social security contributions.
Extension of the epidemic situation
The Minister Presidents’ Conference has resolved to ask the German Bundestag to consider declaring an epidemic situation of national importance beyond 11 September 2021. In terms of employment law, this primarily means that claims to compensation can still be asserted according to Section 56 of the German Infection Protection Act [Infektionsschutzgesetz - IfSG].