Research into a vaccine against Sars-CoV-2 has been carried out under high pressure within the last few months, with success. The pharmaceutical companies BioNTech/Pfizer and Moderna have now applied for approval of their vaccine at the European Medicines Agency (EMA).
This is also good news for employers. Thus, a (preferably) nationwide vaccination of employees could enable a ‘return to the workplace’ and effective health protection in the workplace. However, a number of legal questions arise in connection with vaccination programmes and mass vaccinations in the workplace, which are discussed below.
No compulsory vaccination against Sars-CoV-2
The Infection Protection Act allows for compulsory vaccination of at-risk sections of the population if a communicable disease with a clinically severe course occurs and its epidemic spread is to be expected. So far, however, there has only been a legal obligation to vaccinate against measles in Germany. Since the Measles Protection Act came into force on 1 March 2020, certain groups of workers (e.g. educators, teachers and medical staff) are only allowed to work if they can provide proof of vaccination.
The federal government has already let it be known that it does not plan to make vaccination against coronavirus compulsory. As long as there is no legal obligation to vaccinate, the introduction of a (contractual) obligation to vaccinate by employers will not be legally permissible either. A vaccination always represents an interference with an individual’s bodily integrity which is protected by fundamental rights: it can only be justified if the vaccinated person has given his or her express consent. The employee’s fundamental right to physical integrity outweighs the employer’s interest in vaccinating the workforce.
Offering a ‘vaccination bonus’
One way of resolving the employer’s dilemma of how to fulfil its duty to protect employees’ health and at the same time not interfere disproportionately with their fundamental rights could be granting a ‘vaccination bonus’. A vaccination bonus could be a special payment for workers who voluntarily have themselves vaccinated against the COVID-19 and provide their employer with proof of this.
It should be noted that the introduction of such a special payment may be subject to works council co-determination and must be measured against the general principle of equal treatment. A vaccination bonus would therefore have to be granted in such a way that no employee is put at a disadvantage unless there are objective grounds for this. Any distinction between ‘regular’ full-time employees and part-time employees, ‘mini-jobbers’, working students, etc. will therefore probably not be acceptable, since the employer benefits from the vaccination of all employees regardless of their status and degree of employment.
Before implementing this type of scheme, employers are therefore advised to first think carefully through who would receive a vaccination bonus, of how much and how it will be paid before communicating it ‘hastily’ to the workforce.
The employee’s obligation to provide evidence
In order to prevent possible cases of abuse, a vaccination bonus should only be paid upon presentation of the vaccination certificate. If the vaccination is offered and carried out by the employer itself (e.g. by the company medical service), proof of vaccination can also be collected by the employer. If, on the other hand, the employee is vaccinated by an external agency such as the family doctor a certificate issued by the vaccinating body must be presented.
However, an obligation to present a complete vaccination certificate is not usually justified for reasons of data protection (the data minimisation principle). This also applies to the storage of the vaccination certificate in the employee’s personnel file. This is against the background that currently proof of vaccination status will not be necessary to implement an employment relationship (s 26(1) of the Federal Data Protection Act).
Coronavirus vaccination is currently not compulsory for employees. Nevertheless, vaccination bonuses for employees who voluntarily choose to get can lead to an improvement in occupational health protection. As far as practical goes, aspects of workplace co-determination, the principles of equal treatment and data protection aspects in particular need be examined and taken into account before any vaccination bonus scheme scheme is implemented.