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30 September 2020
A COVID-19 vaccine will hopefully soon be available. The German labour law requirements regarding a vaccination for employees and a possible obligation to vaccinate are already largely clear.
Employees cannot require their employer to carry out or pay for COVID-19 vaccinations. It is solely up to employers to decide which concrete protective measures they wish to undertake. However, it is often in employers' best interests for employees to be vaccinated. If employers offer a (free) vaccination (eg, through a company doctor), this is a benefit that must be offered to all employees, taking into account the principle of equality. Limiting the offer to only a few groups of employees will be permissible only in exceptional cases (eg, if one group of employees is exposed to a greater risk of infection than other groups). It would also be conceivable, for example, to grant vaccination premiums or incentives for a voluntary vaccination, the distribution principles of which are subject to the codetermination of the works council. Between 1 March 2020 and 31 December 2020, such COVID-19 special payments are tax and social security free up to €1,500.
At present, there is no legal vaccination requirement for COVID-19 and a vaccination is currently not mandatory for employees. Such a legal obligation to vaccinate certain groups of employees in Germany exists only for measles, pursuant to the Measles Protection Act, which came into force on 1 March 2020. The Federal Constitutional Court has confirmed the need for compulsory vaccination in summary proceedings. Accordingly, the Infection Protection Act stipulates that all employees who work in healthcare facilities (eg, hospitals) or community facilities (including schools and day care centres) must be vaccinated against measles. Older employees born before 31 December 1970 are excluded from this vaccination obligation. Employees affected by the vaccination obligation who do not present a vaccination certificate cannot work in affected companies. In such cases, the public health department will issue a so-called 'ban on employment'. As a rule, such a ban on activities can also justify a dismissal for personal reasons if the employee persistently refuses to be vaccinated. However, a 'forced' vaccination is out of the question.
Thus, in order for a legal vaccination obligation to apply with regard to a COVID-19 vaccine, the Infection Protection Act would first have to be amended. At present, there is no indication that the government is planning to introduce a legal obligation to vaccinate with regard to COVID-19. It is more likely that the vaccination will remain voluntary, as is the case with other infectious diseases.
Likewise, there is no (employment) contractual obligation to vaccinate. Employers' right of direction is insufficient for a vaccination order. A vaccination obligation agreed in an employment contract, measured against the Term and Conditions Law, is unlikely to be effective and would thus be unenforceable.
Some legal scholars argue that employers could – depending on the possible side effects and risks of a vaccination on the one hand and the danger of COVID-19 (ie, lethality rate) on the other – require employees to be vaccinated due to the duty of loyalty under their employment contracts. This opinion should be viewed critically and does not form a basis for employers to order obligatory vaccinations according to the current state of affairs. Employees must initially undergo only a health examination if the law or a collective agreement provides as such (eg, an occupational health check-up for certain positions in certain sectors, such as the food industry). Further, there is no general obligation to undergo a health examination as a contractual accessory obligation. Only in cases of an employer's legitimate interest must an employee undergo a medical examination. Employers' interest in the examination must always be weighed against the employee's interest in maintaining their privacy and physical integrity. First, a differentiation must be made according to the intervention's type and objective. In essence, a proportionality test is always required. No other standard can apply to vaccinations which – unlike health checks – are not per se suitable for assessing an incapacity to work based on an acute or chronic illness and enable the employer to assess the employee's ability to work. Due to the purely preventive nature of vaccinations and the invasive nature of the intervention (ie, the injection of a substance into an employee's body as well as the vaccination's possible side effects), the balancing of interests is likely to be in favour of the employee's physical integrity. In addition, employers' fundamentally legitimate purpose of protecting their workforce from mass infection can also be regularly met by milder means, such as the voluntary vaccination of larger groups of the workforce.
Thus, there is currently no obligation for employees to be vaccinated against COVID-19. Nevertheless, employers can recommend vaccination to their staff and make it more appealing by offering vaccination premiums or vaccinations free of charge (eg, through the company medical service). However, if an employee refuses (voluntary) vaccination, this refusal cannot be used as a basis for disciplinary measures under labour law (eg, dismissal). Should the legal situation change – for example, because a legal obligation to vaccinate certain groups of employees (analogous to the measles vaccination) will be introduced in the Infection Protection Act at the end of 2020 or when a vaccine is available – this issue will have to be assessed differently.
For further information on this topic please contact Pauline Moritz at Mayer Brown by telephone (+49 69 7941 0) or email (email@example.com). The Mayer Brown website can be accessed at www.mayerbrown.com.
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