Just before Christmas Eve, on 21 December 2020 the EU Commission formally recommended the vaccines produced by BioNTech and Pfizer for authorisation in the member states. And just before New Year’s Eve, the first vaccines were administered to German citizens. As of today, 417.060 individuals (as of 7 Jan 2021) have received their first part of a two-part vaccine in Germany. Most of them are old age inhabitants of care facilities, or their health care workers. An unpleasant surprise is that so far, the quota of health care workers willing to be vaccinated is very low, at about 50 %.
We have been asked if vaccines against COVID-19 can be made mandatory for employees under German law. To answer this question, we have to make a number of assumptions:
- We can assume and it has been proven that the vaccine provides safety against a COVID-19 infection for the vaccinated person. To what extent this remains true when mutations occur, we will have to see.
- It is not yet clear to what extent a vaccination prevents vaccinated individuals from infecting others with the COVID-19 virus (so called ‘sterile vaccination’). In this context, we will assume the most likely scenario, i.e. that it will lower the probability of a third-party infection, but not completely exclude it.
- It seems clear that it will take months until everyone outside of the medical sector or other risk groups will have had the chance to get a vaccine in Germany. Before everyone has had the opportunity, any attempts to react to the voluntary act of being vaccinated (or its refusal) will be difficult.
Given these assumptions, a number of statements can be made based on the current legal situation.
Employees cannot be forced into taking a vaccine against COVID-19 without a legal basis
It is part of the constitutional freedom of employees not to take a vaccine even if this means putting themselves into danger. In a similar vein, employees cannot be forced into giving up smoking or otherwise harming themselves. It is also worth noting that the German Federal government has implemented a COVID-19 App (with currently 20 million users out of 80 million citizens), pointing out that the use of the app is voluntary both in the workplace and in other circumstances. On the other hand, the German Federal Statute against Infections provides for an obligation to be vaccinated against measles for certain workplaces (s20 paragraph 3), and there is a remote provision enabling the Federal Ministry of Health to issue a similar obligation for individuals at risk to be vaccinated where there is a severe danger for health. However, even a statutory obligation to be vaccinated cannot lead to employees being vaccinated by sheer force. Employees cannot be forced to work, either. Refusal can only lead to the dismissal of those who do not comply.
In most cases, it will not be legal to dismiss employees based on their refusal to be vaccinated against COVID-19
A dismissal that meets the high legal standards of German protection against unfair dismissal would only be justified if being vaccinated could be considered a personal requirement for performing the job, similar to a bus driver having a driver’s licence. This only seems likely if we go beyond our second assumption above and assume that a vaccine protects others against infection. Merely being protected against falling sick, however convenient that would be for employers, does not seem to be in line with German case law on dismissals based on personal reasons. However, if there is a much lower probability of infecting others, failing to be vaccinated and not being able to present a lower risk for patients, customers or guests might qualify as a justified reason.
It is legitimate to transfer employees who refuse to be vaccinated to another, safer, workplace with stricter rules for protection
Even if a vaccination does not significantly lower the risk of infecting others, it is justified to move employees who are unable or unwilling to be vaccinated to safer workplaces, with less client contact, and with stricter rules on behaviour for their own protection, such as a continued obligation to wear masks, and restrictions on social gatherings such as a team lunch break in the workplace canteen or kitchen. The Berlin Labor Court has recently confirmed the obligation to wear masks in the workplace (as opposed to a plexiglass shield, as the airport employee plaintiff would have preferred, decision of 15.10.2020). This right, and possibly obligation, arises out of the employer’s obligation to protect their employees. Difficulties do of course arise in industry sectors where there is a shortage of labour, such as the health care sector. An additional recommendation for situations where employees either dispute the existence of COVID-19 altogether or refuse to take a vaccine based on concerns is to require them to take part in a seminar about the health risks of COVID-19 and about the benefits of a vaccine.
Employees will still be entitled to sick pay even if they have refused to be vaccinated and are then being infected
Another question is whether employees who refuse to be vaccinated could not be entitled to sick pay, based on the argument that it is their own fault if they have been infected with COVID-19. German law grants six weeks’ sick pay for employees who are unable to work due to sickness through no fault of their own. So far, German case law has been very reluctant to even acknowledge cases of fault, including with cross-country horseback riding or skydiving which makes it unlikely that failing to be vaccinated might be seen differently by German courts.
A vaccination bonus can be granted
It seems clear that it is legitimate to grant a cash bonus to employees who have taken a vaccine (again, only once everyone has had the chance to be vaccinated). While there is a principle of equal treatment under German law, being vaccinated will provide a justified reason for being treated in a different manner, both because it is to the advantage of the employer (less sick pay) and of the employee (lower or no risk of infection).
Processing of data about a vaccination against COVID-19 is legitimate to the extent that it is required for the performance of the employment contract
The information about which employees have been vaccinated is sensitive information (special category data, Article 9 paragraph 2 EU GDPR, s26 paragraph 3 German Federal Act on Data Protection). Processing is legitimate if it is necessary for the performance of the employment relationship. While it is not clear to what extent vaccination reduces infection, in particularly sensitive areas it will be permissible to record the vaccination status in individual cases, at least for employees’ protection. If the employer decides to reward employees who have been vaccinated with a cash bonus or to apply a different set of safety rules, it will need to know who has been vaccinated. This can be proven by showing the official vaccination pass, or a separate doctor’s vaccination document.
Employers will not be liable for any vaccination damages of their employees. Nor will they be liable for failing to force employees into being vaccinated
Under German law, employers are protection against any liability arising out of physical harm that their employees incur in the workplace. The liability for these work accidents is borne by the statutory health insurance for the industry sector in question. In addition, individuals who have taken a recommended vaccine and suffered damage are entitled to special compensation under the German Federal Statute against Infections (s60).
Regarding the second liability scenario, liability for failing to force employees into a vaccination, employees might of course try to claim damages for becoming infected at work, especially if they suffer lasting health effects. The argument would be that by failing to make vaccines mandatory, the employer has violated the obligation to keep employees from harm. However, it is still now unclear to what extent vaccinations help to protect others. From a practical perspective, in court, employees would need to be able to show that they were infected in the workplace, not on public transport or at the supermarket. Also employers cannot be liable for failing to force their staff if that is not legally possible. Finally, the strongest argument is that they obviously failed to be vaccinated and thereby protect themselves.
German employers have several options to encourage their staff to take vaccines. Just remember, before implementing a bonus scheme or any rules on behaviour in the workplace, the works council must be consulted (if it has been elected in the German entity).