11/06/2021
COVID-19 and labour law: compulsory testing and vaccination at the workplace
The question of whether companies can oblige workers to undergo COVID-19 tests and vaccinations, and what the consequences and what the consequences are under employment law in case of refusal leads– unfortunately – to ambiguities in the current public debate. There is often talk of legal grey areas as well as the need for clearer rules for employers and employees. However, the legal situation is by no means as unclear as it is often made out to be. Of course, due to its complexity, various aspects must be considered when assessing this question, but at the same time, clear conclusions can be drawn. We have summarised the most important of these below. It must be emphasised, however, that these decisions will always be made on a case-by-case basis and that generalisations should be avoided. Employment law consequences in view With this information, we would like to give you security not only now, but also for the future. As the vaccination drive progresses, there will always be unvaccinated employees alongside vaccinated ones – regardless of whether they do not want to or cannot be vaccinated. Companies are facing new employment -law challenges, since compulsory vaccination is not planned to be implemented in this country. The answer to the question about the vaccination status of employees and in the case of a conscious decision against vaccination, in the final analysis, after weighing up the interests, even dismissal is possible can be responded with yes. In their recently published articles, employment law experts Bernhard Hainz and Christoph Wolf take a comprehensive look at employees’ personal rights and fiduciary duties, employers’ duties of protection and care as well as data protection considerations in order to comment on the consequences under labour law:
Vaccination status in the employment relationshipMandatory testing and vaccination in the COVID-19 pandemic from an employment law perspective How compulsory tests and vaccinations can be justified: 1. They’re in everyone’s interest: a risk-benefit analysis will usually show that the benefits of COVID-19 testing, and vaccination outweigh the potential risks in terms of protecting oneself and others. 2 Duty of care: companies must ensure the health and safety of all workers, which includes taking measures to prevent the risk of infection. 3. Duty of loyalty: workers must protect the interests of the employer, but also those of colleagues and customers, which is why protective measures for everyone’s benefit, such as testing, must be observed. 4. Duty of disclosure: both the question of proving a negative COVID-19 test result and proving one’s vaccination status are permissible and must be answered truthfully – largely irrespective of the worker’s sector and field of activity. 5. Obligation to test: this can be implemented beyond the legal framework applying employer instructions and is justified by the danger of infection with the coronavirus. 6. Compulsory vaccination: even if there is no actual obligation to vaccinate in the employment relationship, the failure to vaccinate or to present proof of vaccination can in certain cases be a factual justification for dismissal. 7. Data protection: The processing of health data by the employer can be based on the above-mentioned duty of care in connection with the fight against the pandemic.
8. No works agreement: a vaccination or immunity status query is to be considered an occupational requirement for which neither a works agreement nor the consent of the works council is required. If you have any questions, please do not hesitate to contact our employment law experts.
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