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(No) mandatory vaccination in the employment relationship

It is of great interest to employers to minimize the risk of SARS-CoV-2 infection in their workplaces – in the future also with the help of vaccinations. This article discusses what employers can ask of their workforce in this context.

While the first individual in the United Kingdom received a corona vaccination on December 8, 2020, and the U.S. Food and Drug Administration (FDA) declared the vaccine developed by BioNTech SE and Pfizer Inc. to be safe on the same day and corresponding approval procedures are underway in the European Union, there is growing hope that the corona pandemic will become more manageable. Until then, society, politics and the economy will continue to face major challenges, especially as the number of infections in Germany and the rest of Europe has risen sharply again in recent weeks.

Nevertheless, it is worth looking into the future, as an effective vaccine and the associated immunization of the population will render the SARS-CoV 2 virus less harmful. If this effect occurs and the threat potential – especially for risk groups – decreases, restrictions and infection control measures are likely to be withdrawn step by step in the near future. For companies in particular, this should provide the long-awaited breakthrough, as business operations can be resumed without hindrance. However, as the German Chancellor Angela Merkel has already noted, this does of course require that a large proportion of the population must have been vaccinated.

It is therefore of great interest to employers to keep the risk of infection in their company – also with the help of vaccinations – as low as possible in order to enable a return to "normal" business operations. Furthermore, the employer is obliged to assess the workplace for risks and take the necessary protective measures. However, it is questionable how far the employer's right goes and what he can demand from the workforce?


No statutory vaccination obligation

There are currently no indications that the German Infection Protection Act will be amended to include a statutory vaccination obligation with regard to corona vaccination. Although an obligation to vaccinate can be ordered by law (as happened with measles); this, however, has not yet been considered for corona vaccination.


No vaccination obligation from the employment agreement

A vaccination order is not covered by the right of direction of the employer (§ 106 GewO). Any obligation to vaccinate agreed in the employment agreement will in all likelihood also fail due to the hurdles posed by a review of general terms and conditions pursuant to sections 305 et seq. BGB, and would therefore probably be invalid. Mandatory vaccinations may also not derive from loyalty obligations of the employee towards the employer. Thus, the employer will not be able to place vaccinations of his workforce under obligation.

The employer should in any case avoid putting pressure on the employees. On the one hand, a forced vaccination is a punishable bodily injury (§ 223 StGB), on the other hand the threat of consequences and disadvantages can fulfil the criminal offence of coercion (§ 240 StGB). In particular, continued employment must not be made dependent on proof of vaccination. The employers’ possibilities are therefore limited to pointing out the advantages of voluntary vaccinations and recommending those.


Conceivable exceptional cases 

Vaccination of the employee may only be mandatory in exceptional cases. The main focus here is on medical staff in hospitals and employees in the care sector. Related to these special fields of activity, an order by the employer would be conceivable in principle, if such an intervention which a vaccination represents, would be adequate and reasonable in the individual case.


Measures for increasing willingness to vaccinate

Nonetheless, employers are free to provide employees with the option of uncomplicated vaccinations on the premises of the employer, should the vaccine be freely available in the future. This is already common practice with flu shots. If employers – as is customary – bear the costs for this, it is to be expected that this will be positively received by employees and taken up in large numbers. In addition, employers may consider incentivizing vaccination readiness through an appropriate vaccination premium.


Conclusion

It is the free decision of an employee to be vaccinated. The employer can not demand vaccination. Neither can a vaccination obligation be derived from (employment) contractual regulations nor from the duty of loyalty in the employment relationship. This may be answered differently for the health and care industry. However, the employer is free to offer (free of charge) Corona vaccination in the company or to promote it, for example, through a vaccination premium.

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