Compulsory corona vaccination at work – what are the limits?
The increasing number of vaccinations means that a normal working life is within reach. For employers and employees, however, there are numerous labor law issues that need to be clarified.
The corona pandemic has not only turned public and private life upside down, but also professional life. Employing companies have had to enforce more and more measures such as home office, mask requirement or corona tests. In the meantime, the pace of corona vaccinations is picking up speed and there are signs of a return to normal everyday work. There is no question that some companies are very interested in their workforce at least partially working in the office again. In this context, many employers and employees ask themselves legal questions about vaccination and whether there is a compulsory vaccination.
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Corona vaccination recommended, but not mandatory
The home office obligation enforced by the federal emergency brake will remain in place until the end of June. You can then return to the office. From a labor law perspective, however, there is no compulsory vaccination in order to minimize the risk of infection in the company. The right of direction according to § 106 of the trade regulations (GewO) does not include compulsory vaccinations. Corona vaccination is voluntary and there is no obligation, confirms the German Trade Union Federation (DGB). In this sense, vaccination is only possible with the prior consent of the person concerned. This also applies to employees in hospitals. However, the DGB specifies that in certain facilities there is an increased need for protection in accordance with the Infection Protection Act. This applies, for example, to hospitals, medical practices, prevention and rehabilitation facilities or public health service facilities. Measures must be taken there to prevent infections. According to the DGB, however, this does not mean that there is an obligation to have a corona vaccination.
Are employers allowed to query the vaccination status?
However, there is disagreement with regard to whether employers can ask about the vaccination status of their employees. Some legal experts consider the demand to be permissible if the employer has to take care of the health of his other employees. The DGB, on the other hand, takes a more strict view: Accordingly, companies are only allowed to request information that they have a legitimate interest in. Such an interest is not given, however, since there is no compulsory vaccination. In addition, the information about the vaccination status is particularly sensitive health data of the employees. According to Section 9 of the General Data Protection Regulation (GDPR), the employer may not simply query and process this, as very strict requirements apply in this regard. An exception that would justify this is the consent of the employee concerned. However, the employer does not have to know the vaccination status of his employees in order to still fulfill his duty of care and implement a corresponding protection concept.
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Deny non-vaccinated people access to the company?
The statements of the legal experts are just as ambivalent when it comes to the ban on non-vaccinated people in the company. Some point out that the employer can exercise his domiciliary rights in order to allow unvaccinated people to work in the home office only. Unions, on the other hand, see it differently. Employees must not be disadvantaged if they are exercising their right not to be vaccinated. It looks a little different when an unvaccinated employee falls ill with corona and has to be quarantined. This is not frivolous behavior if the sick person has not taken a recommended vaccination. There is still a right to continued remuneration for six weeks. Those who have to be quarantined and are officially banned from working have a right to compensation. However, according to Section 56 (1), p. 3 of the Infection Protection Act (InfSG), this does not apply if the employment ban could have been avoided by a recommended vaccination.
How employers create incentives for a corona vaccination
Employers cannot oblige their employees to have a corona vaccination. Instead, however, they have the opportunity to create incentives for this. For example, you can ensure that employees can keep a vaccination appointment during working hours. This is where Section 616 of the German Civil Code (BGB) applies, according to which the employee is absent for a short time through no fault of his own and his claim to remuneration still remains. Because the allocation of the tight deadlines for the corona vaccination has been specified to date and the employee has no influence on it. A bonus for a vaccination is also an incentive that, according to the DGB, there is nothing wrong with. However, the participation of the works council is necessary, as a bonus is subject to co-determination in accordance with Section 87 (1) No. 7 and 10 of the Works Constitution Act (BetrVG).
