In focus: Who bears the costs and is it ­mandatory to be vaccinated?

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A vaccine against Sars-CoV-2 (the “coronavirus”) will hopefully be here soon. The labor law requirements regarding a vaccination for employees and
a possible obligation to vaccinate are already largely clear.

Do employers have to offer the vaccination (free of charge)?
Employees cannot require their employer to carry out or pay for corona vaccinations. It is solely up to the employer to decide which concrete protective measures he wants to take. However, it is often also in the employer’s interest for employees to be vaccinated. If the employer offers a (free) vaccination, for example, through the company doctor, this is a benefit that must be offered to all employees in principle, taking into account the principle of equality. Limiting the offer to only a few groups of employees will only be permissible in exceptional cases, for example if one group of employees is exposed to greater risks of infection than other groups. It would also be conceivable, for example, to grant “vaccination premiums/incentives” for a voluntary vaccination, the distribution principles of which are subject to the co-determination of the works council. Between 1 March and 31 December 2020, such “Corona special payments” are even tax- and social security-free up to an amount of € 1,500.00.

Can the employer demand that employees be vaccinated?
A corona vaccination would currently not be mandatory
for employees.
At present, there is no legal vaccination requirement. As of today, there is only such a legal obligation to vaccinate certain groups of employees in Germany in the case of measles disease. In this case, the legislator recently declared measles vaccination to be mandatory for certain groups of employees in the Measles Protection Act, which came into force on 1 March 2020. The Federal Constitutional Court has confirmed this compulsory vaccination in summary proceedings. Accordingly, the Infection Protection Act stipulates that all employees who work in health care facilities (such as hospitals) or who work in a community facility are subject to the measles vaccination obligation. Community facilities include schools or day care centers. Older employees born before 31 December 1970 are also excluded from the vaccination obligation. Employees affected by the vaccination obligation who do not present a vaccination certificate are not allowed to work in the affected companies; in such cases the public health department will issue a so-called “ban on employment”. As a rule, such a ban on activities can also justify a dismissal for personal reasons if the employee persistently refuses to be vaccinated. However, a “compulsory” vaccination is also out of the question here.
For a legal vaccination obligation with regard to the corona vaccination, the Infection Protection Act would therefore first have to be amended. At present, there is no indication that a legal obligation to vaccinate is planned by the government. It is more likely that the vaccination will remain voluntary, as is the case with other infectious diseases.

No (employment) contractual obligation to vaccinate
Likewise, there is no (employment) contractual obligation to vaccinate. The employer’s right of direction is not sufficient for a vaccination order; a vaccination obligation agreed upon in the contract of employment will, measured at the requirements of the Term and Conditions Law, probably not be effective and thus not enforceable.
Some argue that employers could – depending on the possible side-effects/risks of a vaccination on the one hand and the danger of the Corona virus on the other hand (lethality rate) – require the employee to be vaccinated due to the duty of loyalty under the employment contract. This opinion is to be seen critically and does not form a basis for employers to order obligatory vaccinations according to the current state of affairs: The employee is initially only obliged to undergo a health examination if the law or a collective agreement provides for this (e.g. occupational health check-up for certain positions in certain sectors in the food industry). Furthermore, there is no general obligation to undergo a health examination as a contractual accessory obligation. Only in the case of a legitimate interest of the employer must the employee tolerate a medical examination of his state of health. The employer’s interest in the examination must always be weighed against the employee’s interest in maintaining his privacy and physical integrity. First of all, a differentiation must be made according to the type of intervention and the objective of the intervention; in essence, a proportionality test is always required. No other standard can apply to vaccinations which – unlike health checks – are not per se suitable for assessing an incapacity to work based on an acute and/or chronic illness and to enable the employer to assess the employee’s ability to work. Due to the purely preventive character of a vaccination and the high quality of the intervention (needle puncture and injection of a substance into the body of the employee as well as possible side effects of the vaccination), the balancing of interests is likely to be in favor of the physical integrity of the employee. In addition, the employer’s fundamentally legitimate purpose of protecting his workforce from mass infection can also regularly be met by a milder means, such as the voluntary vaccination of larger groups of the workforce.

Conclusion
Thus, there is currently no obligation for employees to be vaccinated against Sars-CoV-2. Employers can nevertheless recommend vaccination to their staff and make it more effective by offering “vaccination premiums” and free of charge (for example through the company medical service). However, if an employee refuses (voluntary) vaccination, this refusal cannot be used as a basis for disciplinary measures under labor law, such as dismissal. Should the legal situation change, for example because a legal obligation to vaccinate certain groups of employees – analogous to the measles vaccination – is introduced in the Infection Protection Act at the end of 2020 when a vaccine is made available, this will have to be assessed differently.

pmoritz@mayerbrown.com

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