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The questions about vaccination in labor law

22. September 2021
From Probandt
Reading time: ca. 2 Minuten

Some believe the employer may not even ask about vaccination. This is wrong. This question is not generally impermissible and in any case it is necessary to differentiate which employer asks the question. It becomes problematic if the question is not answered truthfully. Can then be terminated?

Again, it depends.

In Germany, there is no legal obligation to vaccinate against any mutation of the Corona virus. One could now argue that the protection of fundamental rights of the individual overrides the protection of the other. Specifically affected are Art 12 GG - right to exercise a profession - Art 14 GG - the established and exercised business - related to the employer and Art 2 i.V.m Art 1 GG concerning the employee ( it is only for the benefit of readability the male form is used, but of course the female form is also meant.)

To date, there is only an obligation for individual occupational groups to be vaccinated against measles. This is regulated in § 20 Infektionsschutzgesetz (hereinafter IfSG). Consequently, the legislature would have to change the IfSG, or adapt. As long as this does not happen, the federal states could introduce such a vaccination obligation by statutory order, but this is highly unlikely in an election year.  Of course, one could also regulate an obligation to vaccinate in collective agreements or works agreements, but the respective trade unions and works councils will also refrain from doing so, so as not to run the risk of the workforce turning away from them, or that this would violate fundamental rights and thus be ineffective. In the past, the unions have asked everyone to get vaccinated to protect themselves and others as best they can

Why is that?

There is no firm evidence that vaccination  protects against transmission of the virus. One has certain figures that transmission from vaccinated people should be lower than from non-vaccinated people, but that is not enough. Only for medical institutions of any kind, § 23a IfSG (personal data on vaccination and serostatus of employees) applies, according to which the  employee can be asked about his vaccination status and he must also answer truthfully. For all other companies, data protection applies, so that the employee can voluntarily answer the question, but does not have to. Consequently, the employer must, if necessary, find other ways to protect the workforce from the spread of the virus and the risk of a plant closure. This requires careful preparation and begins with extensive information for all those who have fears and may not be allowed to be vaccinated for medical reasons. The assurance of absolute confidentiality and the offer to be employed at another workplace or even in a home office if necessary should lead to individuals opening up and answering the question about vaccination truthfully on their own initiative. We will have to resolve the consequences of the lack of mandatory vaccination in the next few years and here, too, the Federal Labor Court will have the final say. This makes it all the more important to have a confidential discussion with any employee who is reluctant to answer this question and to be vaccinated. If there is good cause to believe that the unvaccinated employee can no longer be employed by the company, the last resort may be termination. The effectiveness of the termination is measured by high standards.

Claudia Frank
Specialist in labor and tax law

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