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COVID 19 vaccine and the workplace: Can employers ask who got their shots?
1. September 2021
As vaccination is not compulsory in Germany to date, the question arises as to whether the employer is entitled to ask its employees about their COVID 19 vaccination status and to demand proof from them of any voluntary vaccination. Are employers allowed to ask if employees have been COVID19-vaccinated and deploy its employees differently depending on the answer? All info about COVID 19 vaccine and the workplace, you can find out here.
COVID 19 vaccine and the workplace: Right to ask at workplace?
First of all, employees can refuse to be vaccinated. They do not have to justify or explain their decision to the employer. But the employee is obliged to provide the employer with the information necessary to perform the employment relationship. Case law grants the employer the right to ask questions „if the employer’s interest in having the employee answer its question is justified, equitable and merits protection for the performance of the employment relationship and if the employee’s interest in keeping his data confidential does not outweigh the employer’s interest in collecting such data“. On grounds of the employer’s duty of care and in order to reduce the risk of infection at the company and during performance of the work owed, a justified request by the employee for information about the employee’s state of health can therefore be argued in principle.
Different treatment of vaccinated and non-vaccinated employees?
There always has to be an objective reason for the permissible different treatment of vaccinated and non-vaccinated employees. This objective reason could be that vaccinated persons pose a significantly lower risk of infection. However, there is no reliable scientific reseach regarding this issue. The legislator has taken this assessment by the Robert Koch Institute (a German federal government agency and research institute responsible for disease control and prevention) as cause to initiate relaxations with regard to the corona restrictions for
fully vaccinated persons and
persons who have fallen ill with Covid-19 but have fully recovered
persons who have tested negative
Therefore, it is reasonable for employers to rely on the existence of an objective reason to treat vaccinated, recovered and negatively tested employees differently to the rest of the workforce.
Legitimate interest of employers in COVID 19 vaccine and the workplace
Accordingly, the employer has a legitimate interest – particularly with regard to its duty of care – to employ only vaccinated employees (or employees who have contracted Covid-19 and have fully recovered or have currently tested negative) where the risk of infection and serious consequences is particularly high. According to § 15 German Occupational Health and Safety Act, employees are obliged in this context – within certain limits – to accept and implement measures for their own safety. This is because compliance with occupational health and safety regulations is not at the discretion of employees.
COVID 19 vaccine and the workplace: Development in the future
Like the entire pandemic, developments as well as political and legal reactions are difficult to foresee. That is why this area is certainly one to watch. Employees may challenge the legality of an employer’s justification for requesting a proof of his or her vaccination status.
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