FAQ: Labour law aspects in connection with corona vaccinations

The first corona vaccinations have been carried out. The plans for widespread vaccination are becoming more concrete as each new vaccine is approved. The possibility of getting vaccinated has also led to an increasing discussion in company practice of the questions this raises with regard to the employment relationship. In our FAQ, our experts Annabelle Marceau and Jörn Kuhn have summarised the most important questions and answers.

1. Can an employer force employees to get vaccinated?

Employers will not be able to legally enforce a vaccination obligation upon their employees because, in particular, there is no statutory vaccination obligation, nor is any such obligation currently intended. In this context, the employer’s right of direction within the meaning of § 106 German Industrial Code [Gewerbeordnung - GewO] certainly does not justify physical interventions in the form of an injection of a vaccine. This constitutes an encroachment upon the right to physical integrity of the employees concerned pursuant to Art. 2 (2) sentence 1 German Constitution [Grundgesetz - GG], which is only permissible with the employee’s consent.

2. Can a vaccination obligation be stipulated in the employment contract?

Such a clause will be invalid pursuant to § 307 German Civil Code [Bürgerliches Gesetzbuch - BGB] as it constitutes an unreasonable disadvantage. The lack of a statutory vaccination obligation, above all, justifies such an unreasonable disadvantage to the employee.

3. Can a shop agreement stipulate that employees must get vaccinated?

No, a general obligation to vaccinate cannot even be justified by shop agreement, for when drafting the regulations, the parties to the shop agreement must respect and protect the personal rights of the employees. This arises from § 75 (2) German Shop Constitution Act [Betriebsverfassungsgesetz - BetrVG].

However, an arrangement to release employees from work to attend an appointment to get vaccinated during working hours can be considered. Ultimately, this is a paid leave of absence for the employee. Here, co-determination pursuant to § 87 (1) No. 2 BetrVG should also apply, which means that a corresponding release from work needs to be regulated in a shop agreement.

4. Does the employer have to release an employee from work for the time of his vaccination?

In general, the principle of "no work, no pay" also applies here. In the case at hand, there is much to indicate that the exception provision of § 616 sentence 1 BGB is relevant. According to this provision, employees retain their entitlement to remuneration if they are hindered in performing their duties through no fault of their own for a relatively insignificant period of time for personal reasons. Similar to the attendance of medical appointments, the attendance of the vaccination appointment can also be regarded as a personal hindrance according to § 616 sentence 1 BGB. However, this is subject to the condition that it is impossible for employees to attend the vaccination appointment outside of their working hours. Here, it will depend on the specific details of the case (availability of appointments, working hours, etc.).

Furthermore, deviating regulations in collective agreements and employment contracts are possible, as § 616 BGB can be contracted out.

5. Can employers ask employees about their vaccination status?

An explicit legal permission to ask this question is set forth in § 23 (a) German Infection Protection Act [Infektionsschutzgesetz - IfSG]. However, this special provision only applies to healthcare workers, who are explicitly mentioned in § 23 (3) IfSG. § 23 (a) IfSG allows employers to ask their employees whether they have been vaccinated against certain pathogens in order to derive a basis for deciding on whether or how to deploy the employees.

However, it also follows from § 23 (a) sentence 3 IfSG that the general provisions of data protection law apply to all other employees outside its scope of application. In principle, therefore, the employer is only entitled to ask the question if and to the extent there is a legitimate and protectable interest for the employment relationship in having the question answered.

If, as is the case here, health data is involved, the standards of Art. 9 GDPR in conjunction with § 26 (3) German Data Protection Act [Bundesdatenschutzgesetz - BDSG] must be observed in this context. Accordingly, the processing of personal data is only allowed if it is necessary to exercise rights or perform legal obligations arising from labour law, social security law and social protection law, and if there is no reason to assume that the data subject has an overriding protectable interest in not having the processing conducted. Here, too, it ultimately depends on the specific individual case, whereby the right to ask questions in this context is likely to be judged rather restrictively.

6. Is it permissible to ask an applicant about the vaccination in a job interview?

In principle, questions may only be permissibly asked if the employer has a justified, equitable and protectable interest in having them answered truthfully and, for this reason, the applicant's interests must be subordinate. Such an interest can always be assumed if the answer to the question is of importance for the job sought and the work to be performed. Depending on the nature of the job, it therefore certainly can be permissible to ask about an existing vaccination. However, the general principles on the employer's right to ask questions also apply here (see also point 5).

7. Does the employer have to issue a certificate to employees if they belong to occupational groups that have a priority right to vaccination?

There is no explicit provision to this effect. However, insofar as an acceleration of the vaccination of the respective employee can be achieved in this way or proof of the employee's right to vaccination can only be provided in this way, it is likely that the employee has such a claim on the basis of the employer's ancillary contractual duty of loyalty.

8. Are company vaccination programmes possible and, if so, are there any particular liability risks involved?

In principle, company vaccination programmes, comparable to offers for flu jabs in companies, are quite conceivable. The prerequisite is, of course, that the method of vaccination actually permits this. Due to the current scarcity of resources and the costly refrigeration of some vaccines, this is unlikely to be feasible at present.

Since there is no conclusion of any treatment contract between the parties to the employment contract, the employer will regularly not be liable vis-à-vis the employee for damages or compensation for pain and suffering resulting from a vaccination carried out by the company doctor. Likewise, the employer does not have to accept responsibility for any breach of the duty of disclosure by the company doctor.

In this context, so-called "vaccination premiums" for voluntary participation in a vaccination programme may also be considered. This ultimately also motivates employees to get vaccinated voluntarily, which in turn can create more extensive protection for the remainder of the employees in the company. However, possible co-determination rights of the works council have to be observed. If the employer wishes to pay a vaccination premium to employees who voluntarily wish to get vaccinated, § 87 (1) No. 10 BetrVG is relevant, as this is part of the company's wage policy. The works council must be involved in this context, especially with regard to any allocation principles. In addition, these should also constitute health protection provisions pursuant to § 87 (1) No. 7 BetrVG.

9. An employee makes a conscious decision not to get vaccinated. Does the employee still receive compensation under the Infection Protection Act if he or she becomes ill with corona and subsequently has to go into quarantine?

Here, again, the first question raised is whether the employer was entitled to ask about vaccination status. Assuming it was allowed to ask such a question and the employee disclosed that he was not vaccinated, this puts the employer on the spot.

Pursuant to § 56 (1) sentence 1 IfSG, compensation under the Infection Protection Act is payable only to persons who, as virus excretors, suspected infected persons, suspected carriers of disease or other carriers of pathogens, are subject to or will be subjected to prohibitions in the exercise of their current occupation and who suffer a loss of earnings as a result.

However, as soon as a corresponding vaccine would actually have been available for the individual employee, the exemption regulation of § 56 (1) sentence 3 IfSG applies. Accordingly, compensation is not payable if, in particular, a ban on exercising the current employment activity could have been avoided by getting a protective vaccination that is prescribed by law or publicly recommended.

Since the Standing Committee on Vaccination [Ständige Impfkommission - STIKO] has declared itself in favour of recommending the COVID-19 vaccination, the employer's obligation to continue to pay wages in accordance with § 56 (1) sentence 3 IfSG can therefore also be dispensed with. However, the standard provision does not become applicable until the actual possibility of vaccination exists. In this context, the prioritisation recommendations and the phased approach of the German Federal Ministry of Health must be taken into account.

If vaccination is possible afterwards, no compensation will be paid. The employer therefore has to decide whether it can consequently employ the employee in the home office, release him from work or even - as ultima ratio - declare the termination of his employment relationship.

10. May an employee be excused from work if he does not want to be vaccinated and the employer cannot use him?

If the employment contract does not contain a clause permitting a leave of absence despite the fact that the employment relationship has not been terminated, the employee is fundamentally entitled to be employed in accordance with the contract. If the employer nevertheless releases the employee from work, the employer is in default of acceptance pursuant to § 615 BGB, with the consequence that it must continue to pay the wage.

In exceptional cases, however, a release from work can also be validly granted without a release clause. However, the employer must be able to prove that there is an overriding legitimate interest in such release from work. This means that considerable operational or personal reasons opposing the employment must exist. Cases are conceivable in which an employee poses a concrete risk of infection, for example when if symptoms of illness become apparent or in order to create sufficient minimum distances in open-plan offices. However, the absence of a vaccination is not sufficient to justify a release from work, as other protective measures (distance and hygiene concept, covering the mouth and nose, etc.) can be taken, which not only serve to protect said employee without vaccination protection from infection, but also other employees, whose protection the employer is obliged to provide.

11. If the employee has not been vaccinated and is therefore unable to work, can he be dismissed (for personal reasons)?

In our view, a lack of vaccination and a resulting inability to continue employment may result in termination. Although the hurdles for the effectiveness of such a dismissal will be high, as, for example, the employer has to prove that it cannot employ the employee, one should be aware of the fact that the employment contract is a contract that has to be assessed under civil law and, thus, this specifically is not a question of the enforcement of an obligation to vaccinate the employee, but a question of whether the employee is in a position to perform the services owed under the employment contract.  

We can certainly expect such termination disputes to also address the issue of permanent home office employment or the separate provision of rooms by the employer. But here too, the employer's organisational sovereignty and its operational interests (including the interests of all other employees in the company) need to be adequately assessed. In individual cases, the question will doubtlessly also arise as to what risk a single unvaccinated employee poses if all the others employees have been vaccinated.

12. On the basis of the employment contract, the employee is obliged to travel abroad on business. However, he is denied entry or carriage by air because he cannot show that he has been vaccinated. Can the employer demand vaccination on this basis?

Even in this case, the employer cannot oblige an employee to get vaccinated for the reasons stated in point 1.

However, other consequences under employment law are conceivable, since the employee is no longer able to perform his contractually agreed work due to the entry ban.

A behaviour-related warning will not come into consideration since, in the absence of a statutory vaccination obligation, this will doubtlessly constitute a violation of the prohibition of disciplinary measures according to § 612a BGB.

Legally, however, this would constitute a case of impossibility due to personal reasons. One would then first have to check whether there are other possibilities of continuing to employ the employee in accordance with the contract. Only if this is out of the question from any conceivable point of view is it possible to terminate the employment relationship by dismissal for personal reasons in an individual case.

13. Can employees who have not been vaccinated be denied access to communal facilities such as the canteen?

In this context, many things are still open. The employer has domiciliary rights, also for communal facilities, which means that it can also define any access rights. In addition, there are already access restrictions, for example through the obligation to wear a mouth-nose covering. Accordingly, it could also be argued here that the employer can stipulate any restrictions on access. In particular, the German General Equal Treatment Act [Allgemeines Gleichbehandlungsgesetz - AGG] does not yet contain a corresponding discrimination provision, although this is currently the subject of political discussion.

However, the fact that such a regulation could constitute a violation of the prohibition of disciplinary measures under § 612a BGB, since there is no legal obligation to vaccinate, speaks against the stipulation of an access restriction according to vaccination status. Moreover, allowing such an access restriction would ultimately lead to a weakening of the employer's legally limited right to ask questions (see point 5) with regard to the employee's vaccination status. The stringent requirements of the GDPR and the BDSG in particular speak against this.

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