May the employer order vaccinations against the coronavirus?

The approval of the first vaccines is a ray of hope in the fight against the COVID-19 pandemic. After the news from Biontech, Pfizer and Moderna triggered a small wave of euphoria at the end of last year, the last few weeks have shown that the road out of the pandemic will still be a long one, despite vaccination. This makes it all the more important to continue to deal with the developments of the pandemic, also in the employment law context.

It seems for sure that the successful control of the pandemic requires a high level of vaccination willingness. However, there also is scepticism with regard to vaccination. Despite this scepticism and although the vaccine is still very short, a discussion about compulsory vaccination came up very quickly.

Employers are also increasingly facing employment law issues related to compulsory vaccination. This is also reflected by our consulting practice – especially in the healthcare sector. We have taken this development as an occasion to deal with the essential employment law aspects of mandatory vaccination in our blog as well.

Education and information obligations of the employer

An important aspect in this discussion – especially for the company and its management – is the employer’s duty to educate and inform. Closely linked to this issue are questions of compensation and liability. In addition to the Occupational Health and Safety Regulation, which recently came into force, the German government has specified the requirements for occupational health and safety in the course of the pandemic through the SARS-CoV-2 Occupational Health and Safety Standard as well as the SARS-CoV-2 Occupational Health and Safety Rule.

In contrast to these very corona-specific requirements with regard to occupational safety and health protection, the employer’s duty to educate and inform are based on general provisions. Regardless of the industry and the coronavirus, every employer has duties of protection with regard to work-related health hazards in accordance with Sec. 618 Para. 1 of the German Civil Code (BGB), 3 and 4 of the German Occupational Health and Safety Act (ArbSchG). In the event of a violation of these protection duties, every employer may be liable for compensation. This particularly applies if an employee is infected with the coronavirus in the workplace.In such cases, the statutory occupational accident insurance usually steps in. However, in the event of damage, the insurance may take recourse against the employer, if the employer has caused an occupational accident, such as a coronavirus infection, by severe negligence.

In practice, employer liability is triggered by the employer’s grossly negligent failure to observe existing protective regulations. Additionally to the organizational and technical protective measures that the employer must take to protect from a coronavirus infection, organization and education are also part of occupational health and safety. In case of non-compliance with the duty to educate and inform, the employer may also be liable in connection with coronavirus infections in individual cases. As there are no precise requirements in this regard, the employer’s obligation to provide education and information vary depending on the industry, the occupation and the workplace.

Healthcare employers are well advised to refer to the general vaccine-specific recommendations of the Commission for Hospital Hygiene and Infection Prevention and the Permanent Vaccination Commission of the Robert-Koch-Institute. To reduce liability risks towards employees and patients as well as their visitors, the following procedure is recommended:

• Education on job-specific infection risks, if necessary advice on vaccination and offer of health check-ups
• Documentation of the existing vaccination protection of the staff
• Appropriate use of non-vaccinated staff (including limited use of non-vaccinated staff on immunocompromised patients)
• Establishment of on-site vaccination services
• Transparent communication of the expected benefits and risks of vaccination

These strict requirements with regard to education and information obligations of the employer apply above all to the healthcare sector and there especially where there is an increased risk of infection due to the specific work, such as for doctors and nursing staff in hospitals and care facilities.

In all other areas, less demanding requirements are likely to apply regarding education and information obligations for employers. Since there are only little to no specific information and requirements in this area, it is advisable in any case to comply with the occupational health and safety standards and regulations and to provide information and education as best as possible within one’s own capabilities.

May the employer order vaccinations?

Politically and socially, as well as in terms of employment law, the most contentious is likely to be the question of compulsory vaccinationfor citizens and also employees. According to the Coronavirus Vaccination Regulation (CoronaImpfV), which specifies the vaccination sequence, initially only people with the “highest priority” are entitled to a vaccination. This group includes, in particular, healthcare employees. The German government has made clear that no general vaccination obligation is planned, nor will there be any indirect vaccination obligation through exempting vaccinated persons from the restrictions.

Accordingly, employers are asking themselves whether they can order vaccination. This is a hotly debated topic, especially in the area of care and health. Until now, a legally regulated vaccination obligation for employees only exists in the healthcare sector and only with regard to measles vaccination. In 2020, the Measles Protection Act came into force in Germany, resulting in a substantial amendment of the Infection Protection Act (IfSG). The effectiveness of this amendment is a matter of legal disagreement. An upcoming decision by the Federal Constitutional Court (BVerfG) on compulsory vaccination against measles, which could also provide clarity with regard to the possible obligation for coronavirus vaccination, is still pending.

Due to the lack of an explicit statutory regulation, as in the case of measles vaccination, the employer’s right to order coronavirus vaccination can only be based on the general provisions of Sec. 106 Industrial Code (GewO) and 241 Para. 2 German Civil Code (BGB). According to Sec. 106 Industrial Code (GewO), the employer is entitled to issue instructions with regard to the orderly conduct of the employees in the company. Under Sec. 241 Para. 2 German Civil Code (BGB), the employee is also obliged to respect the interests and concerns of the employer. Both provisions are limited to the employment relationship. 

Both of the vague general clauses must be specified by means of a proportionality review that weighs up the conflicting interests. In this respect, the following aspects must be particularly considered in the case of vaccination against the coronavirus:

The protection of colleagues, patients, care home residents and visitors from the infectious virus is first of all, of course, a legitimate aim of the employer. However, another prerequisite is also 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, this cannot be assumed with certainty at the moment.

Compared to compulsory vaccination, no less intrusive but equally effective measures must be available to the employer. Less intrusive measures include, for example, compliance with the “AHA+L” rules (distance, hygiene, mask, airing), quick testing or fever checks. An argument against the equal effectiveness of these measures could be that particularly quick testing can provide incorrect results and that not all infected persons show the same symptoms, such as fever.

In the final weighing of employer and employee interests it must also be taken into account that ordering vaccination significantly interferes with the employee’s right to physical integrity (Art. 2 Para. 2 Sent. 1 Constitution – GG)and of personality (Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 Constitution – GG). In the case of employees working in the health and care sector, also the justified and weighty interests of patients and residents of a care facility not to become infected with the coronavirus in the hospital or care home (Art. 2 Para. 2 Sent. 1 Constitution – GG) need to be taken into account. This applies all the more since a predominant number of patients belongs to the so-called risk group. Therefore, in the healthcare sector – unlike in other industries – it is quite possible to argue that employee interest should take a back seat to the interests of the patients and the employers. This special duty of care towards care home residents or patients is for example also reflected in the general prohibitions on visits to care homes, the classification of this group by the government as the first addressee of vaccination or the recently inserted Sec. 23 Para. 3 Sent. 1 Infection Protection Act (IfSG).

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 health.

Therefore, employers will not be able to enforce compulsory vaccination in the company for now.This even applies to the health care sector as long as there is no reliable knowledge about third-party protection of 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).

Employer’s right to ask

Also under discussion is an employer’s right to ask about the existence of vaccination protection. In the healthcare sector in particular, employers can use this information to significantly improve infection protection for employees, patients and those in need of care. Such a right to ask is therefore being considered as a less intrusive measure than compulsory vaccination. 

From a legal perspective, the employer’s right to ask questions is known in particular in connection with trade union membership, pregnancy or previous convictions. Since an employer’s right to ask questions and the associated obligation to answer truthfully by the employee interferes with the employee’s right of personality under Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 of the Constitution (GG), case law generally counters such rights to ask questions with restraint. In any case, it is necessary that the employer has a legitimate, reasonable and protectable interest in answering the question truthfully.

In the case of vaccination protection, employers must be able to prove that this question is closely related to the specific work of the employee. For the benefit of the employer, it is important to take into account the employer’s duty of care and protection towards its employees and customers or clients.

Considering the risk of infection, the employer’s right to ask questions with regard to an acute infection is likely to be permissible without further justification. However, an argument against a right to ask questions regarding vaccination is that even in the case of Sec. 23a Infection Protection Act (IfSG), the survey of vaccination status is only considered lawful if it can also provide correspondingly 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 is (still) no reliable knowledge regarding the protection of third parties with regard to the coronavirus vaccination, even a right of the employer to ask questions 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. An important thought in this context is: How are employees deployed, if they state that they have not been vaccinated? If any vaccination protection does not affect personnel planning, the employer’s right to ask about vaccination protection is all the more fallacious.

This does not prevent employees from being asked about the existence of vaccination protection. However, there is then a “right to lie“, which is why employees may not answer at all or may answer untruthfully without having to fear adverse consequences.

Moreover, in all matters relating to the obligation to vaccinate and the right to ask questions, there are also issues relating to co-determination and data protection law to consider.

ConclusionThe answer to employment law questions also depends on medical science information. As long as there is no reliable information on third-party protection, employers will not be able to enforce mandatory vaccination within the company. A right to ask questions also encounters legal concerns and will have to be rejected based on the current state of knowledge. Employers are therefore currently well advised to pursue a voluntary approach to vaccination.