Update FAQ: Employee testing and occupational corona vaccination

1. Are companies obliged to have their employees tested?

According to the Third Ordinance Amending the Sars-CoV-2 Occupational Health and Safety Ordinance, which came into force on 23 April 2021, companies are now obliged to offer all employees who do not work exclusively in a home office a Corona test (PCR or rapid antigen test for professional or self-use) on a regular basis twice a week. In principle, there is still no obligation for employees to make use of the test offers. However, companies must keep evidence of the procurement of tests, e.g. invoices from any suppliers or contracts and invoices with service providers commissioned to carry out the tests, until 30 June 2021.

In addition to this general obligation to provide testing services for employees, there is a testing obligation for certain groups of employees according to various federal and state regulations in individual federal states and uniformly across the country, for example in Saxony or Berlin for employees with direct customer contact or according to § 3 CoronaTestVO for the staff of inpatient care facilities.

2. In what form should companies inform their employees about the test offers?

There are no legal requirements for testing offers for employees, so that in principle any suitable information about a testing opportunity is permissible.

However, it is advisable to make the test offer to all employees present in the company, e.g. by e-mail or notice board. The content of the offer should inform about where and when the tests will be carried out or are available and how they are to be used as intended. Furthermore, it should be pointed out that the acceptance of the offer is voluntary, that the employee does not incur any costs due to the test and how to proceed in case of a positive test result.

3. Can companies oblige employees to take the test?

The question of whether companies may order a corona test even without legal regulation and without concrete suspicion of infection has not yet been clarified by case law. At present, mandatory tests are only required for hospitals and comparable medical care facilities, for nursing and care facilities (cf. CoronaTestVO), as well as for certain groups of employees according to state law.

Insofar as compulsory testing is to be carried out by means of a right of direction or on the basis of a collective regulation, it must first be noted that compulsory testing represents an encroachment on the personal rights of the employee. This means that a blanket obligation to test for all employees is probably inadmissible; rather, the operational circumstances must be taken into account, such as risks of infection. A key argument here is also the duty of care of companies. In detail:

An employee's duty to cooperate in the performance of regular corona tests results from the general duty of consideration pursuant to section 241, paragraph 2 of the German Civil Code, according to which employees are obliged, within the bounds of what is possible and reasonable, to avert or minimise imminent damage to the company and other employees. Enforcement by means of the employer's right to issue instructions according to section 106 sentence 2 GewO is possible.

In this context, it is likely to be decisive whether the instruction or the act of cooperation based on the duty of consideration corresponds to equitable discretion or is reasonable. This is to be assessed on the basis of a weighing of interests in each individual case. The interests of employees worthy of protection include, in particular, physical integrity, the general right to privacy and the right to informational self-determination. Companies have a legitimate interest in economic activity and in fulfilling their duties to protect and care for their employees.

Weighing up the respective legal positions, we believe that an obligation to test for employees can certainly be justified in individual cases. On the one hand, for example, so-called "spit tests" can be used, which are carried out without a swab in the nose or throat and can therefore be classified as much more pleasant for employees compared to known PCR tests. In these cases, the testing does not involve any physical intervention. On the other hand, regular rapid tests can reduce the risk of unknown infections and subsequent mass infections, which serves to prevent (serious) damage to health and is thus in line with the company's duty of care.

If, on the basis of this consideration, compulsory testing comes into question, the introduction of compulsory corona tests for employees should be regulated in a binding manner, whereby the co-determination rights of the works council must also be observed, as such compulsory testing affects both company orderly behaviour and company health protection.

4. Is the works council to be involved in the case of compulsory testing?

A testing obligation is subject to co-determination in any case under section 87 (1) no. 7 BetrVG (occupational health and safety). The parties to the works agreement must observe the personal rights of the employees when negotiating and concluding a corresponding works agreement under the provision of section 75 (2) of the Works Constitution Act, so that the parties to the works agreement cannot conclude a works agreement without a determined discussion of the pros and cons. Regulations according to which the testing obligation is extended to all employees in the company and also includes those who work exclusively or predominantly in the home office are inadmissible. Employees can therefore refuse to take a test.

5. What applies if employees refuse to cooperate in a Corona test?

If the employee refuses to carry out a permissibly ordered Corona quick test, he or she cannot perform his or her contractual duties due to lack of access to his or her workplace, so that there is no entitlement to remuneration for the "lost" time pursuant to section 326 of the German Civil Code (BGB). In the event of repeated refusal by the employee, a warning or dismissal of the employee may also be considered. 

6. Can companies set up their own test sites in the company? What needs to be taken into account here? What are the liability risks?

In-company corona testing can be carried out by adequately trained own staff as well as by third parties, such as recognised test centres or service providers. The co-determination rights of the works council must also be observed when establishing such testing centres.

Self-tests are basically carried out by the user himself and do not impose any special formal requirements on the end user. Only PoC antigen rapid tests must be performed by medical or suitable and trained personnel. If a doctor or other medical personnel with at least three years of training carries out the testing, they are liable according to the general principles of professional law. In this case, the company is not liable. If the company has rapid tests carried out by its own employees who have been specially trained for this purpose, liability may arise in individual cases. In these cases, the company has a so-called selection and monitoring obligation, i.e. the company must carefully select, train and instruct its own personnel. The training of own employees should be documented for evidence purposes.

7. Which tests can be used by companies?

The Federal Institute for Drugs and Medical Devices (BfArM) presents a list of approved Corona rapid and self-tests on its website (here).

8. Can companies require employees to share the result of the Corona test?

In the case of voluntary use of the test offer by employees, there is basically no obligation for employees to inform the company of the test result. Similarly, there are no documentation obligations for companies.

In the case of a positive test result, however, the employee is obliged to segregate himself/herself immediately, i.e. employees must leave the company immediately. With regard to the duty of consideration under section 241 (2) of the German Civil Code (BGB), it is sometimes argued that employees are obliged to inform the employer of a positive test result so that the employer can fulfil its duty of care and take care of the health concerns of other employees. This would in any case not apply if infection of colleagues can be ruled out (e.g. employee previously worked in a home office and was tested before entering the company).

If a (company) doctor or trained personnel carries out the Corona rapid test, this person is obliged to report a positive test result to the competent health authority according to §§ 8 para.1 no.1, 9 IfSG.  

9. What data protection requirements must be observed during testing and evaluation?

In terms of data protection law, the evaluation of the tests involves the collection of health data. The permissibility of data processing is essentially based on Section 26 (3) BDSG. This states that data processing is permissible if it is necessary for the fulfilment of obligations under labour law and there is no reason to assume that an interest of the employee that opposes the processing outweighs it. The intended fulfilment of the company's duties of protection and care is likely to outweigh the interests of the employee. The assumption is confirmed by Sections 22(1)(b), 24 BDSG, according to which the processing of such data for the purpose of health care and for the assessment of employees' ability to work should be permissible. It should be noted, however, that the health data collected may only be selective data records that may not be stored or catalogued and must be destroyed immediately after submission. In addition, according to Art. 13 GDPR, employees should be informed about the processing of their personal data, for example by handing over a form with information about the purpose of sharing test results.

10. Does the company have to or can it offer vaccination to its employees?

In general, there is no legal obligation for companies to offer Corona vaccinations. Currently, vaccinations against COVID-19 are mainly offered in vaccination centres or by mobile vaccination teams and by general practitioners. However, according to § 6 para. 1 of the Corona Vaccination Ordinance, it is possible in principle for vaccinations to be carried out by company doctors on site in companies. In addition, according to the Federal Minister of Health, it is planned to integrate company doctors into the vaccination campaign from June onwards as vaccine capacity increases.

11. Who bears the costs of vaccination?

An obligation to bear the costs of vaccinations offered by the company only exists in the case of so-called occupational vaccinations to which the employee is entitled. This is the case if the employee is exposed to an increased risk of infection through his or her work compared to the general population (section 6, paragraph 2, sentence 3 ArbMedVV) and this has been determined by the company doctor on the basis of a risk assessment. With regard to COVID-19, this should regularly not be the case due to the general pandemic situation, as long as it does not concern an activity in a particularly endangered occupational group, such as healthcare workers. A general obligation of the company to bear the costs for a Corona vaccination therefore does not exist in principle.

As a rule, the employee's statutory health insurance covers the costs of a protective vaccination. Covid 19 vaccinations are covered by the statutory health insurance (§ 20i SGB V in conjunction with the Coronavirus Vaccination Ordinance). It is true that company doctors and occupational physicians do not usually participate in SHI-accredited medical care, so that services provided by them cannot be billed to the health insurance funds. However, in order to increase the vaccination rate, it is stipulated by law that health insurance funds should also conclude contracts with them for the provision of protective vaccinations (§ 132e SGB V). If such a contract has been concluded, the health insurance fund also bears the costs for vaccinations carried out in the company.

If no contract according to § 132e SGB V has been concluded, the company generally bears the costs of a company Covid 19 vaccination. However, in this case it should be noted that the company can generally provide these benefits up to a value of EUR 600 per employee per year free of wage tax and social security contributions in accordance with § 3 no. 34 EStG.

12. What applies with regard to prioritisation in the case of in-house vaccination?

Currently, the general vaccination prioritisation also applies to in-company vaccination, so that only those employees may be offered Covid 19 vaccination for whom there is a corresponding priority in the sense of the Corona Vaccination Ordinance.

With increasing availability of vaccines, the timely dissolution of the rigid vaccination sequence seems likely. In this case, the question arises as to which yardstick should be used to distribute the vaccination offers among the employees of a company. Against the background of the general principle of equal treatment under labour law, a different treatment of individual employees should only be permissible if there is an objective reason. For example, an increased risk to certain employees due to increased contact could be considered.

13. What are the liability risks for companies?

A contractual liability of the company for potential vaccination damages, e.g. due to a lack of information, is excluded if not the company but only the company doctor becomes party to the treatment contract. Following the case law of the Federal Labour Court on company flu vaccinations (cf. BAG, judgement of 21 December 2017 - 8 AZR 853/16), the following points in particular should be taken into account:

• The company doctor is a freelance doctor who is not employed by the company.
• The company doctor invites to the vaccination in his own name and the offer of vaccination does not contain any indication that the company wants to become a contractual partner.
• The vaccination should take place in an area of the workplace that is freely accessible to employees and where the company does not usually carry out treatments.

The company's duty arising from the employment relationship is limited to carefully selecting the freelance company doctor. However, the company has no further duty to supervise the attending doctors in carrying out the vaccination. There is also no liability risk for the company with regard to a tortious liability of the company under §§ 823 para. 1, 831 BGB for damages resulting from a Covid 19 vaccination, provided that the freelance company doctor was properly selected. 

14. Couldn't employed company doctors use it to vaccinate?

For employed company doctors, the legal situation outlined is unsatisfactory, as in this case the company becomes a party to the treatment contract and this can restrict the companies' vaccination initiatives.

In practice, it is becoming apparent that any vaccination risks can be covered by appropriate insurance. Many public liability insurance policies cover vaccinations. The company should therefore check its public liability insurance and take out an extra policy if necessary.  

15. Can companies oblige their employees to be vaccinated? Alternatively, can incentives for vaccination be granted?

A general legal obligation to vaccinate against the coronavirus does not currently exist and is not planned according to the current situation. Therefore, an order by the company tovaccinate the employees cannot be enforced with legal effect - neither by a right of direction nor by a provision in the employment contract.

To encourage vaccination, companies can promise their employees special benefits, e.g. a day's special leave or a one-off special payment, in case they get vaccinated. The company is largely free to design such special benefits. However, it should be noted that it is only an incentive, i.e. the amount or the scope of the special benefit must not be suitable to exert pressure on the employee that is equivalent to a compulsory vaccination. In addition, the general principle of equal treatment under labour law must always be observed when granting special benefits, so that, for example, part-time employees may not be placed in a worse position than full-time employees.

16. What co-determination rights must be taken into account when introducing an in-house vaccination concept?

When introducing company vaccination programmes, the works council's participation rights, if any, must also be taken into account. On the one hand, the works council has a right of supervision according to section 80, paragraph 1, no.1 of the Works Council Constitution Act (BetrVG) with regard to compliance with occupational health and safety regulations, which also includes the ArbMedVV, so that the works council must be informed in a timely and comprehensive manner about planned vaccination programmes of the company.

In addition, any co-determination rights of the works council under section 87 (1) of the Works Council Constitution Act (BetrVG), in particular no. 1 (questions of order and conduct in the workplace) and no. 7 (regulations on health protection) are also considered. However, if the employer's vaccination offers are voluntary and there are no compulsory regulations to be filled in by the employer, the scope of application of these co-determination rights is not opened. If the company grants bonuses or other incentives to employees for participating in a company vaccination programme, the works council's right of co-determination under section 87 (1) no. 10 of the Works Council Constitution Act (BetrVG) must be observed, as this is part of the company's wage structure.

17. Do companies have to give their employees time off for a vaccination appointment?

Similar to doctor's appointments, vaccination appointments must be made outside working hours, so that according to the principle of "no pay, no work", the entitlement to remuneration for such times does not apply. However, attending a vaccination appointment is likely to be regarded as a personal impediment within the meaning of section 616 sentence 1 of the German Civil Code (BGB), with the consequence that the entitlement to remuneration for the time of absence continues to exist by way of exception. However, this only applies if it is not possible for the employee to attend the vaccination appointment outside working hours, e.g. if the appointment has been fixed by the authority.

However, the provision of section 616 of the German Civil Code (BGB) may be waived in the employment contract, so that the company does not have to pay remuneration even if a vaccination appointment is assigned by the authorities.

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