News of effective COVID-19 vaccines certainly provided the much needed light at the end of the tunnel. As the government embarks on the mass vaccination programme in 2021, we explore some of the key legal issues employers will be facing.
Can employers insist an employee is vaccinated?
Of course, an employer can encourage their employees to be vaccinated. But the key question is whether they can also force the employees against their will without any legal backup of a general obligation to vaccinate.
Vaccination, even if it seems particularly important due to the nature of the employee's activity (contact with risk groups), affects the protected core of constitutional rights in Germany. The physical integrity of the employee, respect for his or her right of personality (privacy), and under certain circumstances freedom of belief and conscience come into conflict with the fundamental rights to economic activity and the employer's duties to protect his or her other employees. As a result, any unilateral instruction to get vaccinated is predominantly considered invalid. Also, any vaccination is bodily harm that requires justifiable consent (by law or due to a medical emergency). No doctor will therefore carry out a vaccination against the employee's will.
For certain occupational groups (employees in hospitals, doctors' surgeries, etc.), however, vaccinations may possibly become a de facto obligation. According to the regulations of the Infection Protection Act, the employer in various areas of the health service can demand an immunity certificate, i.e. a certificate of successful vaccination upon employment. However, the proven immunity must be necessary in view of the job in question. Milder measures, e.g. compliance with certain hygiene measures, must not be sufficient. Whether the currently existing protective measures, including the use of protective clothing, can be regarded as milder means in view of the high risk of infection and spread of the coronavirus, despite all protective concepts, seems questionable.
Therefore, this rule applies only to a very small group of employees.
Separate from the question of whether employers can legally enforce vaccination of their workers is the question of whether they can take action against those who refuse vaccination. We comment on this below.
What steps should employers be taking?
The employer should continue to create the framework conditions for the prevention of infections within the framework of their duty of care and occupational safety. The protection and hygiene concepts should continue to be observed and adapted to the respective regulations and specifications of the employers' liability insurance associations. Please note that due to current regulations, the employer must offer its employees the opportunity to work in the home office. Employees shall make use of this option. Employers may only deviate for urgent operational reasons.
Furthermore, the employer should consider providing vaccination opportunities as soon as this is possible (and not already done through the first wave of vaccination).
Since a unilateral order for vaccination by the employer is highly questionable, there are considerations to supplement the employment contract in such a way that the employee agrees to be vaccinated. Again, it is doubtful whether such a clause would be valid as the employer would dictate such clause from a position of power and an employee would not be able to defend him or herself against this. However, in individual cases or for certain groups of employees, proof of immunity may be required before starting work, which could be included in the employment contract.
What if an employee refuses to be vaccinated?
Employees who refuse to be vaccinated can under certain circumstances be dismissed on personal grounds if the reduced risk of infecting third parties significantly contributes to the personal suitability for the agreed job (staff in nursing homes, hospitals, etc.) and thus the interests of the employer are affected. Of course, this presupposes that a vaccinated person actually poses no or a demonstrably reduced risk of infection, which does not seem to be clear at present.
Under these conditions, dismissal for personal reasons is likely to be given at least to those employees who are in daily contact with risk groups and for whom there is no free alternative workplace. However, a detailed and separate legal examination of each case is required to determine whether such dismissal meets the respective legal requirements for dismissal.
Can employers refuse entry to the workplace if an employee has not been vaccinated?
Generally, employees have the right to actual employment. However, this right is not applicable if there are overriding interests on the part of the employer that are worth protecting. This can arise from the employer's duty to protect its other employees and its customers from health risks. This in turn presupposes that vaccinated persons are not at risk of infection or that the risk of infection is significantly reduced, i.e. they cannot be carriers of the COVID-19 virus. In all other respects, the circumstances of the individual case must be taken into account:
- How high is the risk of infection of third parties if the employee goes about his or her regular work without appropriate vaccination protection?
- Can appropriate protective measures be implemented to prevent infection of others?
- How elaborate are these and what costs are they associated with?
In this context, the evaluation of a job with direct customer contact will certainly be different than the evaluation of a job without contact with other persons. It will certainly also have to be examined whether the employer may be obliged to provide a home office in order to prevent the infection of others (a respective legal obligation is currently limited until 15 March 2021). This would in effect create an otherwise non-existent right to a home office for the employee who is not willing to be vaccinated.
If a balancing of interests concludes that the employer's interest in employing only vaccinated employees prevails the employee's right to employment, the second question is whether they must pay any remuneration although not receiving any work results. If the employee cannot present comprehensible reasons for his or her refusal to vaccinate that are worthy of protection, there is a strong argument for denying such claim to remuneration.
Overall, however, the hurdles will be very high depending on the respective job. Moreover, the practical problem for employers is that they often do not know whether an employee has been vaccinated (see data protection considerations below).
What discrimination issues might arise?
In addition to this de facto employment ban, milder measures are also conceivable, in which employers differentiate between vaccinated and non-vaccinated employees. Such different treatment can extend to all areas of working life: For example, access to company canteens for vaccinated workers only, different working conditions for vaccinated and non-vaccinated workers, etc.
Any differentiation generally needs an objective justification, such as medical reasons as well as reasons of occupational health and safety, whereby medical proof is required that the vaccinated employee is no longer contagious. Please note that the different treatment can indirectly affect particular protected characteristics (e.g. age, disability, gender). This would be the case, for example, if younger people are not yet vaccinated (due to a lack of sufficient vaccine), while older people are, but also if certain groups such as disabled people or pregnant women cannot be vaccinated for medical reasons. Such different treatment would only be permissible if it is justified by a legitimate aim and no milder means to achieve this aim are conceivable.
In any case, the employer should be very careful, if they plan on any different treatment of vaccinated and non-vaccinated persons. At least in the first months of this year, when vaccination is only available for a small proportion of the population, different treatment (and especially the granting of privileges to the vaccinated) is not (yet) recommended.
What are the data protection implications?
In any case, all of the above requires that the employer knows whether the employee has (already) been vaccinated. This information, however, is particularly protected personal data, as it concerns health data. In this respect, the employer must ensure that adequate reasons for the collection and processing of the data are clearly defined and documented. Likewise, the collection of the data must be transparent and proportionate.
A collection of data should in any case only begin when this is relevant, especially because (positive) consequences result from the fact that the employee has been vaccinated. However, it would probably go too far to survey all workers. Rather, there should be a system whereby workers who are vaccinated can state this, but there is no obligation to provide information. The employer could consider all those who have not given this information - according to the principles shown – as unvaccinated (if any differentiation allowed). In this respect, the employee retains the freedom not to inform the employer about the vaccination status, but must then also accept the consequences.
Pursuant to Section 23a Infection Control Act, there is a special provision for employees in particularly sensitive areas such as hospitals, doctors' and dentists' practices, rehabilitation facilities, but also rescue services and outpatient nursing services with intensive care. The processing of vaccination status is always permissible here, insofar as this is relevant to the type and manner of employment and (in the case of applicants) to the hiring itself.
Many questions of labour law are currently still unanswered. Most of them are likely to depend decisively on whether a vaccinated person can still be a carrier of the virus and thus continue to pose a risk of infection. However, the actual pressure will increase significantly - irrespective of the employment relationship - at the latest when universal vaccination is possible and (other) companies begin to differentiate according to vaccination status, e.g. in access to benefits.