Possible vaccination obligation in Germany?

Since the first vaccine against SARS-CoV-2 was approved and vaccinations started in Germany in December 2020, there has been increasing discussion about compulsory vaccinations. The debate currently focuses on a sector-specific vaccination obligation for doctors and nursing staff.

Infection Protection Act as the legal basis

The provision of § 20 (6) sentence 1 German Infection Protection Act [Infektionsschutzgesetz, IfSG] could serve as the legal basis for such a vaccination obligation. According to the Act, the German Federal Ministry of Health is empowered to order by ordinance, with the consent of the Bundesrat, that sections of the population at risk must participate in protective vaccinations or other specific prophylactic measures if a communicable disease with clinically severe forms of progression occurs and its epidemic spread is to be expected.

The fact that corona occurs with clinically severe forms of progression has now been confirmed by the Robert Koch Institute, among others. Doctors and nursing staff are exposed to an increased risk of infection, despite protective measures such as personal protective equipment. For example, in July 2020, 10% of those infected with corona were doctors and nursing staff, according to the World Health Organisation 1. Epidemic spread has already occurred.

Proportionality must be maintained

However, as in the discussion about the obligation to vaccinate against measles as a prerequisite for care in public institutions, according to § 20 (8) IfSG, one could argue whether such measure respects the principle of proportionality or would actually be unconstitutional.

The proportionality of a vaccination obligation depends on whether the measure (i) has a legitimate purpose, (ii) is appropriate and necessary to further the purpose and (iii) the intended purpose is not disproportionate to the severity of the interference (reasonableness).

A sector-specific vaccination requirement would be suitable to achieve the legitimate purpose of ensuring the ability of the health care system to function. Such a vaccination obligation would not be suitable to prevent the infection of patients, senior citizens or persons in need of care: it has not been ruled out to date that vaccinated persons could catch and carry the virus in their body despite the vaccination, and thus possibly infect others (just clinical immunity). According to the Robert Koch Institute, if doctors and nursing staff were vaccinated, there would be a 95% lower risk of the vaccinated person contracting the corona virus 2. This would ensure that doctors and nursing staff can continue their work in health and care institutions.

Alternative to the vaccine?

It is doubtful that there is any less intrusive remedy. In addition, the willingness to get vaccinated, as public reporting has shown, has been relatively low to date, especially among nursing staff. Additional clarification hardly makes any sense for people from this sector, as they already have the necessary medical knowledge. It is also not possible to release sick doctors or nursing staff from their duties in order to avoid infection, as an infection with corona can be asymptomatic and thus remain undetected. In addition, a significant proportion of infections occur before the first symptoms appear.

The systematic conducting of antigen tests, so-called rapid tests, would probably be just as unpromising. These represent only a snapshot and the result is not always reliable. In order for an antigen test to show a positive result, a larger amount of the virus is required compared to the so-called PCR test. This means that a negative antigen test result does not exclude the possibility of an infection with SARS-CoV-2. Many hospitals and senior citizens' centres have since set up special quarantine wards, which at least enable contact with known infected persons to be reduced, and have taken additional protective measures. However, there is still a more than insignificant risk of infection from persons in a pre-symptomatic stage (usually 1-2 days) and from asymptomatically infected persons.

Appropriateness is crucial

Since a vaccination obligation would interfere with essential constitutionally protected legal interests, namely the integrity of the body and health (Art. 2 (2) Alt. 1 German Constitution [Grundgesetz, GG]) and the right of self-determination (Art. 2 (1) in conjunction with Art. 1 (1) GG), particularly high requirements are set for the proportionality. This aspect will ultimately determine whether a sector-specific vaccination requirement is likely to be introduced.

When weighing the interference with the rights of the individual against the legitimate purpose, the fact that the known side effects of the corona vaccination to date are rather minor must be taken into account. Among the systemic reactions, fatigue and headache (about 50% each) have been determined. In rare cases, fever occurs. Against this background, the intensity of the interference with individual rights would seem to be moderate. On the other hand, we still do not know how long the effect of the vaccination will even last and the long-term effects of the vaccination, especially in case of the new method using messenger RNA (mRNA). Furthermore, the number of doctors and nursing staff is relatively small in relation to the population, which means that herd immunity cannot be achieved through sector-specific compulsory vaccination alone and there would therefore be a high risk of infection in general.

The impact of the pandemic on the health system, on the other hand, is significant. The absence from work of a significant number of doctors and nursing staff due to corona could lead to a care deficit in the health care system as a whole. Hospitals, nursing homes and doctors' surgeries would no longer be able to provide adequate care. This would pose a significant threat to the life and physical health of a more than insignificant proportion of the population. In addition, corona tests, among other things, could no longer be carried out, which would further increase the overall risk of infection.

Compulsory vaccination for doctors and nursing staff unlikely

The individual arguments have to be carefully weighed against each other. If only vector vaccines were to be used in the context of compulsory vaccinations, this would be a well-known procedure that does not differ significantly from other known vaccines. The risk of long-term effects would be minimised further.

As

• the vaccination of doctors and nursing staff cannot reliably exclude the possibility of infecting third parties,
• quarantine wards have now been set up in many facilities,
• a large number of doctors and nursing staff are already voluntarily being vaccinated, and
• it is also uncertain how long vaccination protection lasts,

there are currently no overriding arguments in favour of a justified interference with the integrity of the body and the right of self-determination.

1 WHO: Doctors and nursing staff account for ten percent of all corona cases, Medical Journal, 19 July 2020 (read more) 

2 Robert Koch Institute, COVID-19 und Impfen [COVID-19 and Vaccination]: Antworten auf häufig gestellte Fragen (FAQ) [Answers to Frequently Asked Questions (FAQ)], status 13 January 2021 (read more)

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