No jab, no job: Can my employer force me to get vaccinated?

by ZELLER & SEYFERT

As vaccine campaigns continue to rollout, slowly but surely, throughout Germany, the return to normalcy at the office seems to be just over the hill. However, not everyone agrees with the efficacy or necessity of the new Impfstoff, and the evidence of whether the vaccine will stop the spread of the virus, while positive, is still limited and under development. With all the uncertainty, it comes as no surprise that some people may be hesitant to get the vaccine.

Then there is the discussion of going back to work after an employee becomes vaccinated. But what if you don’t want to be vaccinated? Could you be terminated?

There is both a simple answer and a more nuanced discussion in this regard.

The simple answer: Based on the current labor law, employees cannot be forced into taking a COVID-19 vaccine without a legal basis.

That being said, there are some other ways employees may be incentivized into taking the vaccine, or otherwise indirectly forced and be left without much of an alternative.

Circumstances where vaccine refusal is legitimate

In the hypothetical scenario where one would be faced with a vaccine ultimatum, there are certain reasons (subject to change based on medical research updates) one can refuse the inoculation:

Age: Currently, out of the vaccines approved for distribution in Germany, the BioNTech vaccine has not been tested nor approved for persons under the age of 16, meanwhile the Moderna and AstraZeneca vaccines have not been approved for persons under age 18.

Disability/health condition: People who have had an allergic reaction to one of the ingredients are not able to take the vaccine.  

Data protection/privacy: If employers do not have the proper security measures in place in order to collect employee health data according to the Federal Data Protection Act (§ 26 Para. 3 BDSG) and the EU General Data Protection Regulation (Art. 9 Para. 2 GPDR), then it is unlikely they have the ability to request confirmation of your inoculation, let alone record it.

Sex discrimination: Coronavirus vaccines have not been approved for use on pregnant women, therefore a mandate would be discriminatory.

Unfair dismissal for vaccination refusal

With these reservations in mind, there are certain workplaces, particularly in the healthcare industry, where vaccinations could be indirectly enforced, such as doctor’s offices, care homes, and hospitals. Because employees in this field frequently come into contact with people with poor health conditions, if the vaccine is proven to highly lower the chance of spreading the virus, workers who are unvaccinated pose a risk to patients and therefore can be justifiably dismissed upon refusal.

On the other hand, if the vaccine is only beneficial to the inoculated and simply prevents the employee from taking sick days, then this would not correlate with dismissal due to personal reasons. Employees should be wary of such threats of dismissal for refusing to take the vaccine, and possibly consult an attorney to see if there is an unfair dismissal case

Government oversight

The possibility of a vaccine mandate has been continuously denied by the government throughout the pandemic. Furthermore, a vaccine mandate can be interpreted as a violation of Article 8 of the European Convention of Human Rights, which protects the right to respect for private and family life. Several cases of forced medical treatment or compulsory medical procedures have fallen under this category. With no intention of forced vaccination by the government, should people be worried?

In the 1800s, vaccinations against smallpox were government-mandated, but obligatory vaccinations have stopped since 1961. From then on, a shift towards voluntary vaccinations based on medical recommendations has fueled Germany’s high quality of public health. However, one recent legal precedent leaves some room for speculation if the promises of “no vaccine mandates” can be kept.

The Measles Protection Act (Masernschutzgesetz) was adopted in November 2019 and initiated in March 2020, incidentally just as the coronavirus pandemic was about to take the world by storm. The law stipulates the requirement for the MMR vaccine before children at least one year old can be accepted into schools, daycare facilities, or other community facilities. The law also extends to individuals who work in childcare/education sectors or medical facilities. While this can be interpreted as a vaccine mandate, this happens indirectly since school attendance itself is compulsory in Germany. Therefore, it is not the vaccination that is legally mandated, but it is a necessary procedure to fulfill the mandatory school attendance.

While the MMR vaccine can be seen as a necessity for the protection of children, as well as their caretakers and immunocompromised individuals who cannot take the vaccine, the at-risk groups affected by COVID-19 primarily lean towards older demographics of society based on statistical data.

The key to the possibility of a government mandate is if the necessity of the vaccine, given to the population for the protection of public health, outweighs individual freedom. This argument has been used for recent coronavirus-related laws, such as mask mandates, closures of certain businesses, and social gathering restrictions. While we believe this to be highly unlikely, if the Health Ministry determines this to be the case after the necessary debate, the Infection Protection Act (Infektionsschutzgesetz) would first need to be amended.

Finding a balance between the safety of all and individual rights

Even one year after the coronavirus crisis began, the medical community continues to study and acquire new findings about the novel virus. It is with the hope that, based on medical necessity and proven safety of the procedure alone, enough people will be encouraged to take the vaccine based on its proven efficacy and necessity rather than through a legal mandate. And while a company cannot legally force an employee to take the vaccine, there are possibilities that the worker could develop a “fear of missing out” on certain aspects of work, such as not being allowed to come into the office, attending corporate events, or embarking on business travel. With regards to the first example, employers can certainly enter discussions with the concerned employees on changing the contractual location of their place of work (from home office allowance to a space in the office that allows not much contact with others). However, this is another indirect way to essentially bully an employee to get vaccinated, which can lead to low morale, dissatisfaction with management, or claims of workplace discrimination.

Instead of mandates, employers can encourage vaccination through providing educational resources, easier access to vaccination via the company physician, offering “vaccination bonuses”, or other benefits. Ultimately, open and honest communication about company decisions and policies with all employees and the works council is much more preferable over last-resort mandates.  Certainly, everyone prefers to make their own decisions, rather than being forced against their will.

Additional coronavirus resources

We have written additional articles about work-related concerns Feel free to check them out below:

Legal counsel for professionals facing unfair dismissal

If you are looking for advice or representation in an unfair dismissal case, by vaccine coercion or otherwise, you should consider consulting a legal expert in German Labor Law. At ZELLER & SEYFERT, Employment Law specialist Atty. Dr. Christian Zeller has closely followed the developments of legal changes surrounding coronavirus in the workplace and specializes in unfair dismissal claims. He can be contacted by the following details:

Telephone: +49 (0) 69-58 80 972-40

Email: mail@zellerseyfert.com

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