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Dealing with COVID-19 vaccination refusal in the workplace: a view from Germany

Written by
Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
Authors
Cornelius Ziegler
Kliemt.HR Lawyers
Germany
26.05.21
3
What are an employer’s responsibilities when an employee refuses COVID-19 vaccination, and in particular, are they obliged to keep paying wages if an employee who has refused vaccination falls sick?

COVID-19 vaccinations are in full swing and hopes are rising for an end to the COVID-19 pandemic. The decision to be vaccinated is voluntary, even in the workplace. To date, there is no explicit obligation to vaccinate. But what about the employer’s obligation to continue paying wages if employees refuse to be vaccinated? 

Principle: ‘No work, no pay’

In principle, the entitlement to wages is based on the employee performing the agreed work. If work performance is not rendered, the principle of ‘no work, no pay’ applies.  

However, given the employee’s need for protection, there are numerous exceptions to this principle. These include illness through no fault of the employee (s3 of the Continuation of Remuneration Act, EFZG, but also s56 of the Infection Protection Act, IfSG). 

Employees suspected of being infected

Workers who are either suspected or proven to be infected with COVID-19 may be banned by the authorities from carrying out their work (s31 of the Infection Protection Act). 

If an employee is banned by the authorities from carrying out activities due to a mere suspicion of infection with COVID-19, there is no entitlement to continued payment of wages under the Continuation of Remuneration Act, as there is no incapacity to work. 

Instead, however, the employee could have a state compensation claim under the Infection Protection Act (s56). In this scenario, the employer would be liable for advance payment on behalf of the authority. However, the claim is excluded if the employee could have avoided his or her work ban by having a recommended protective vaccination (s56, paragraph 1, sentence 4 of the Infection Protection Act). In this case, the employee would generally have been responsible for his or her own ban (according to the legislator’s justification).  

However, this rule can currently only be applied in a limited way. As long as there is not enough COVID-19 vaccine available for the entire population, a distinction will have to be made between workers who have already refused vaccination (no compensation claim) and workers who have not yet had the possibility of vaccination (eligible for compensation). 

Conversely, does this mean that the employer is not required to pay the employee in this situation? Not necessarily. A claim against the employer could still exist if the employee is prevented from performing his or her work for a relatively insignificant period of time due to a personal reason for which s/he is not responsible (s616 of the Civil Code). According to the previous case law of the Federal Supreme Court (BAG), a short (approximately ten days) official quarantine order qualifies as a personal reason for hindrance. 

However, in order to avoid contradictory interpretations, the legal interpretation described above for s56 Infection Protection Act must also apply here in relation to the question of fault. Otherwise, an employee who is unwilling to get vaccinated could continue to successfully assert a claim for continued payment of wages against his or her employer, who has not effectively waived s616 of the German Civil Code, while at the same time losing its state compensation claim. 

In the event of a symptom-free COVID-19 infection, employees should therefore only be able to ‘save’ their wage entitlement by working from home during quarantine (if this is actually and legally possible). 

Employees with proven COVID-19 infection

But what happens if the employee becomes unfit for work as a result of a COVID-19 infection after refusing vaccination? In this case, the employee will usually retain his or her entitlement to continued payment under s3 of the Continuation of Remuneration Act, provided that the incapacity for work is not his or her own fault.  

According to the Federal Labour Court, an employee acts culpably within the meaning of s3 of the Continuation of Remuneration Act if  s/he substantially violates the conduct to be expected from a reasonable person in his or her own interest (judgment of 18 March 2015, docket no.10 AZR 99/14).  

This violation will not arise from the mere refusal to be vaccinated against COVID-19. Neither previous labour court jurisprudence nor the majority of the literature considers the failure to take preventive action against infectious diseases (e.g. getting a flu vaccination) to be a fault on the part of the employee within the meaning of s3 of the Continuation of Remuneration Act. 

Conclusion

The employee’s entitlement to continued payment of wages when he or she has not been vaccinated is a highly explosive issue that will become increasingly important with the wider availability of different vaccines for the population. At present, however, there is still legal uncertainty. It can be assumed, however, that court decisions will soon follow. 

Until then, it is important for employers to carefully examine the relevant circumstances. In any case, the following should apply: If an employee is unable to work due to COVID-19 infection, s/he is generally entitled to continued payment of wages under the Continuation of Remuneration Act.