Please note that the legal situation with regard to the Corona pandemic is subject to constant change. Therefore the following information only reflects the above-mentioned status. Thus it is urgently advisable to check the information for any changes in the legal situation.
Covid-19 vaccinations and testing in companies could play a crucial role in combating the pandemic and bringing economic life back to normal. In particular, carrying out rapid testing in companies could help keep the number of infected employees down until they are offered a vaccination. A large number of companies have already started testing their employees within the framework of the possibilities currently available to them. Many more must and will follow soon.
There are, however, many employment law questions that arise in this connection. Are employers allowed to order that coronavirus testing be carried out at work? What happens when employees refuse to be tested? Do employers have a right to know if their employees have been vaccinated? You can find the answers to the most important questions in these FAQ.
Contents
- Which coronavirus tests are employers even allowed to procure and give to their employees?
- Are employers obliged to offer rapid coronavirus tests?
- Are employees obliged to carry out the rapid coronavirus tests provided by their employer?
- Does an employee have to inform his/her employer that he/she has tested positive for coronavirus?
- Is the disclosure of the employee’s test result by the testing personnel to the health authorities and the employer compatible with the data protection regulations?
- An employee has tested positive using a self-test – How should the employer proceed with people who have been in contact with this employee?
- What are the liability risks for an employer if it offers coronavirus tests to its employees?
- Do employers have to give their employees time off to attend a vaccination appointment?
- Is an employer obliged to provide coronavirus vaccinations? Who would bear the costs of the vaccine?
- Are employees obliged to take advantage of the coronavirus vaccinations offered by an employer?
- Can an employer sanction employees who are unwilling to be vaccinated?
- Is an employer allowed to promise its employees special benefits if they get vaccinated?
- Is an employer allowed to ask about the vaccination status of its employees?
- What liability risks exist for the employer in connection with coronavirus vaccinations being carried out by company doctors?
- What does an employer have to bear in mind if it does not have enough vaccine for all of its employees who are willing to be vaccinated?
- Does the works council have codetermination rights with regard to the coronavirus vaccination offered by the employer?
1. Which coronavirus tests are employers even allowed to procure and give to their employees?
Generally, employers are allowed to procure self-tests via the usual channels (e.g. chemists, wholesale and retail, etc.). "Point-of-care (POC) antigen rapid tests" can currently only be procured by doctors and companies from the critical infrastructure sector. However, the German Regulation Concerning the Supply of Medical Devices (MPAV) is currently being amended to ensure that all companies have access to these tests in the future.
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2. Are employers obliged to offer rapid coronavirus tests?
Until April 2021, there was no obligation for employers to test their employees or to offer them a test. Only the federal state of Saxony was the first federal state to decide that employers must offer a free self-test to all employees present in the company once a week from 22 March 2021 (section 3a (1) Saxon Corona Protection Ordinance (SächsCoronaSchVO).
However, on 20 April 2021, the Second Ordinance Amending the SARS-CoV-2 Occupational Health and Safety Ordinance (SARS-CoV-2-ArbSchVO) came into force. This obliged employers to offer their employees a Corona test once a week if they did not work in a home office without exception. For certain groups of employees, the test had to be offered twice a week, e.g. for employees with regular customer contact.
But only two days later, on 22 April 2021, the Third Ordinance Amending the SARS-CoV-2 Occupational Health and Safety Ordinance (SARS-CoV-2-ArbSchVO) came into force. It now obliges companies to offer a corona test twice a week to all employees who do not work exclusively in a home office.
However, companies do not have to document that their employees have actually used the tests. The employers are already fulfilling their obligation by simply sending the self-tests to their employees' homes or making the tests freely available in the office. As an alternative to self-testing, rapid medical antigen tests can also be carried out by trained personnel. The obligation will be included in the German SARS-CoV-2 Occupational Health and Safety Regulation (Corona-ArbSchV) and, according to the Federal Ministry of Labour and Social Affairs (BMAS), is expected to take effect as early as calendar week 16.
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3. Are employees obliged to carry out the rapid coronavirus tests provided by their employer?
The obligation for companies to offer coronavirus testing is only an obligation for the employer to offer tests; this does not result in an obligation on the employer to actually test employees.
In principle, employers are still not allowed to order that preventative mass testing be carried out in the workplace. This is because coronavirus testing infringes the physical integrity and general personal rights of an employee. In addition, the test results pertain to particularly sensitive health data which, according to data protection provisions, may only be collected and processed under very strict conditions. From an employment and data protection law perspective it is, therefore, only possible to implement compulsory testing if the employer’s interests in carrying out the testing outweigh the fundamental rights of the affected employee. This is usually only then the case if the employer is not able to take measures that affect the employees’ rights to a lesser extent. This includes, for example, working from home. Consequently, in most cases the necessity to collect and process data is missing. Therefore, testing in the workplace without a specific reason is only allowed if employees consent to the testing being carried out.
Different rules may apply if an employee is showing typical coronavirus symptoms, such as a cough or a fever. Generally, it is the local health authority who decides whether a coronavirus test must be carried out. However, because of their general duty of care, employers are likely to be entitled to ask employees who are exhibiting typical coronavirus symptoms to undergo a rapid test.
An exception applies at least when compulsory testing is mandated by law. In fact, the Free Hanseatic City of Bremen is the only state so far to have enacted a general testing obligation for all employees to whom the employer must make an offer of testing in accordance with the SARS-CoV-2 Occupational Health and Safety Ordinance (SARS-CoV-2-ArbSchVO); in Bremen, this offer must therefore be accepted since 10 May 2021 (§ 2a para. 2 25th CoronaVO as amended on 06.05.2021). An exception applies to fully vaccinated persons and those who have had a COVID-19 infection proven by PCR test in the last six months (§ 2a para. 2, 3 25th CoronaVO in the version of 06.05.2021). In addition, there are testing obligations for certain groups of employees in numerous states. In some federal states - including North Rhine-Westphalia, Bremen and Rhineland-Palatinate, for example - people who work in a nursing home or an outpatient care service must undergo regular testing. In Saxony, a testing obligation has been in place since 15 March 2021 for all those members of staff who have direct customer contact (section 3a (2) Saxon Corona Protection Ordinance (SächsCoronaSchVO)), in Berlin an obligation for all employees who are in physical contact with customers (section 6a (3) SARS-CoV-2 Infection Control Measures Ordinance Berlin (InfSchMV Berlin)). If in such a case an employee refuses to take a test, the employee is not performing his/her work properly and must, therefore, expect consequences under employment law. It is possible for the employer to release him/her from his work without pay and issue a written warning. In the event that the employee continues to break the rules, it may even be possible to terminate the employment relationship.
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4. Does an employee have to inform his/her employer that he/she has tested positive for coronavirus?
Covid-19 is a "notifiable disease" under the German Protection against Infection Act (IfSG) (section 7 (1) no. 44a German Protection against Infection Act (IfSG)). An employer is, therefore, entitled to ask employees before they commence their work whether they have made use of the testing on offer. If an employee has participated in the testing, the employer may further ask if the test result was positive. If the test result is positive, an employee is actually obliged to inform his/her employer without specifically being asked to do so, as this employee must fulfil his/her duty of care and protect the health of the other employees. An exception could only then apply if it can be ruled out that no colleagues were infected (e.g. if the employee is working exclusively from home).
If a (company/works’) doctor carries out a rapid coronavirus test, the doctor is obliged, under sections 8 (1) no. 1, 9 German Protection against Infection Act (IfSG), to inform the competent health authority of the positive test result. This reporting obligation will soon be extended to non-medical personnel.
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5. Is the disclosure of the employee’s test result by the testing personnel to the health authorities and the employer compatible with the data protection regulations?
The processing of employees’ personal data by the testing personnel through the disclosure of the test result is compatible with the General Data Protection Regulation (GDPR) and the German Data Protection Act (BDSG).
Disclosing the test result to the health authorities serves to fulfil the legal reporting obligation under section 8 German Protection against Infection Act (IfSG). Accordingly, the disclosure of a positive coronavirus test result to the employer serves the purpose of preventative health care and the protection of vital interests of other employees and can, therefore, be supported by article 6 (1) d) and article 9 (2) h) GDPR.
As personal data from employees are being processed when a rapid test is carried out and the results of the test disclosed, the employees must be informed about the processing of their personal data in accordance with article 13 GDPR (in particular, with regard to the reasons for the disclosure of the test result and with regard to who is responsible for data processing in terms of data protection law). This can be carried out, for example, by handing over a factsheet when informing and instructing about the test procedure. For documentation purposes, the person carrying out the testing should obtain written confirmation of receipt of the factsheet.
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6. An employee has tested positive using a self-test – How should the employer proceed with people who have been in contact with this employee?
Even though the current self-tests are highly reliable, according to the Robert Koch Institute (RKI), a positive result from one of these tests initially only indicates that there is a suspicion of a Covid-19 infection. The actual diagnosis can only be determined by a PCR test and after a medical assessment has been carried out. Therefore, any people who have been in contact with an employee who has tested positive are only initially deemed to be "contact persons" in a suspected case of Covid-19. If they themselves do not show any typical symptoms of the coronavirus (coughing, fever) the employer does not have to take any measures until the results of the self-test have been confirmed; in particular, the employer does not have to isolate any other employees.
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7. What are the liability risks for an employer if it offers coronavirus tests to its employees?
If a doctor or any other medical personnel with at least three years of medical training carries out the test they would be liable, at most, according to the general principles of professional law. The employer would not be liable in this case.
However, if an employer's employee carries out the test on another employee without any appropriate training, the employer may well be held liable if the employer is at fault. This type of fault could, in particular, come into question if the employer fails to carefully select, train and instruct the employee carrying out the test. In this respect, it is recommended that the relevant training sessions are documented for verification purposes.
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8. Do employers have to give their employees time off to attend a vaccination appointment?
Generally, employees are required to attend medical or vaccination appointments outside of their working hours. Otherwise, any claim to remuneration would lapse for the period of absence. However, the situation is different if the employee was not able to choose the date for the vaccination, but rather this appointment was assigned to them by the authorities. In this case, the statutory rules set out in section 616 German Civil Code (BGB) would apply and, as an exception, the remuneration entitlement would continue to be valid for the period of absence. This rule can, however, be waived in the employment contract so that the employer does not have to pay the salary in the event that an appointment is assigned by the authorities.
Of course, employers are also at liberty to make more generous arrangements and release their employees from their obligation to work for the period of the vaccination appointment ensuring they continue to receive their remuneration.
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9. Is an employer obliged to provide coronavirus vaccinations? Who would bear the costs of the vaccine?
There is no legal obligation for an employer to provide a coronavirus vaccine. At present, coronavirus vaccinations are being carried out in vaccination centres or by mobile vaccination teams (section 6 (1) German Coronavirus Vaccination Regulation (CoronaImpfV). However, according to section 6 (3) German Coronavirus Vaccination Regulation (CoronaImpfV), it is generally possible for vaccinations to be carried out at other locations other than the vaccination centres, such as by company doctors on site in the workplace.
There is no general obligation on the part of the employer to bear the costs of a coronavirus vaccination as it is not an occupational vaccination which an employee is entitled to. This would only be the case if the employee is exposed to an increased risk of infection through his/her work compared to the general population (section 6 (2) sentence 3 German Occupational Health Care Regulation (ArbMedVV)) and this has been determined by a company doctor on the basis of a risk assessment (e.g. employees in clinical areas who have contact with infected persons).
As a rule, the employee’s statutory health insurance will cover the costs of a vaccination. Covid-19 vaccinations are among the benefits provided by the statutory health insurance (section 20i German Social Code V (SGB V) in conjunction with German Coronavirus Vaccination Regulation (CoronaImpfV)). Company doctors and occupational physicians do not generally participate in the provision of contractual medical care, which means that their services cannot be invoiced to the statutory health insurance companies. However, section 132e German Social Code V (SGB V) stipulates that statutory health insurance companies should also enter into contracts with company doctors for the provision of vaccinations. If such an agreement were to be entered into, statutory health insurance companies would also bear the costs of vaccinations carried out in the workplace.
Moreover, services up to a value of EUR 600 per employee per annum that relate to the prevention and reduction of risks to health and to promote heath in the workplace can under specific circumstances be exempt from wage tax and social security contributions according to section 3 (34) German Income Tax Act (EStG).
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10. Are employees obliged to take advantage of the coronavirus vaccinations offered by an employer?
There is currently no general legal obligation to vaccinate against the coronavirus. This would require an amendment to be made to the German Protection against Infection Act (IfSG) which, according to current statements from the legislator, is not intended.
The employer's right to give instructions (Direktionsrecht) (section 106 German Trade, Commerce and Industry Regulation Act (GewO)) does not include the right to order a workforce to be vaccinated. Also, any obligation to vaccinate in the employment contract would – on the basis of a necessary review of compliance with the statutory provisions on general terms and conditions that is required for employment contracts, as well as the principle of proportionality – also be invalid and, therefore, unenforceable. This is because the interests of individual employees’ physical integrity, which are protected by fundamental rights, generally outweighs any interest the employer may have in reducing the risk of infection in the workplace. Exceptions are nevertheless conceivable, e.g. in the health or nursing care sector.
The German Measles Protection Act (MSG), which came into force in March 2020, is currently the only vaccination that is compulsory. Accordingly, this vaccination against the measles virus is compulsory for employees in health care facilities (e.g. hospitals or doctors' practices) or in community facilities (e.g. daycare centres). But even in this case, compulsory vaccination merely means that those employees who are covered by the scope of the law who cannot provide proof of vaccination are not allowed to work in the respective company; however, this type of ban on work can usually also justify a dismissal (relating to the person of the employee), but not a "compulsory vaccination". The prerequisites for also applying these basic principles for compulsory vaccination against the coronavirus to nursing staff in nursing homes and to medical facilities as well as to doctors already exists in section 20 (6) sentence 1 German Protection against Infection Act (IfSG).
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11. Can an employer sanction employees who are unwilling to be vaccinated?
Dismissing unvaccinated employees can only be considered in exceptional cases. The prerequisite for this is that the employee cannot be permanently employed without posing a risk to himself/herself or others. Before issuing notice of termination, the employer must, therefore, check whether alternative employment opportunities exist for this employee. For example, whether the unvaccinated employee can be moved to another position where there is no contact with customers.
At the same time, however, the question arises of whether employers can refuse to allow those employees who are unwilling to be vaccinated access to the company premises, referring to their right as an employer to refuse access to the premises (Hausrecht). As the vaccination has up to now been voluntary for employees, by refusing to be vaccinated employees are merely exercising their rights in a manner that is permissible. A general refusal to grant access to the premises to unvaccinated employees would, therefore, breach the prohibition on disciplinary measures under employment law pursuant to section 612a German Civil Code (BGB) because it would constitute sanctioning an unvaccinated employee for exercising his/her rights in a manner that is permissible. However, it should also be noted that the an employer exercising its right to refuse access (Hausrecht) on the basis of proof of vaccination would not necessarily render the employees’ entitlement to remuneration null and void. It should, in particular, be decided in this case whether the employee would be able to perform his/her work without the vaccination (e.g. working from home or in a separate operating area).
Nevertheless, exceptions are also conceivable here too. Access could be restricted, for example, to canteens or confined break rooms if the recognised hygiene rules cannot otherwise be complied with. However, in order to ensure that individual employees are not excluded, it is advisable to draw up a company hygiene concept.
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12. Is an employer allowed to promise its employees special benefits if they get vaccinated?
In principle, employers are generally allowed to promote willingness amongst their employees to be vaccinated by providing "vaccination incentives". However, when drafting vaccination incentives, the general principle of equal treatment must be observed. This means, for example, that part-time employees are not allowed to be treated less favourably than full-time employees. It is up to the employer to decide how such an incentive should be drafted. In addition to vouchers, the granting of an additional day's leave or a one-off special payment could be an option, for example. However, no promises should be made that employees will be "exempt" from the hygiene concept applied by the employer (e.g. keeping your distance, wearing mouth-nose protection and ventilation). This is because, in addition to testing and vaccinations, the hygiene measures put in place in companies make a valuable contribution to combating the pandemic.
Granting special benefits as an incentive to promote willingness to get vaccinated does not constitute a breach of the prohibition on disciplinary measures pursuant to section 612a German Civil Code (BGB) either. However, it is a prerequisite that the amount or the scope of the special benefit does not exert such a high amount of pressure on the employee that it constitutes a compulsory vaccination.
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13. Is an employer allowed to ask about the vaccination status of its employees?
Generally, the right to ask questions is limited to the employer asking about facts where there is a legitimate interest which is worthy of protecting. In this context, it is particularly important to know that information relating to vaccination status is particularly sensitive health data within the meaning of article 9 GDPR.
Therefore, when taking conflicting interests into consideration, the employee's general personal rights, which are constitutionally protected, must be weighed up against the employer's interest in protecting its other employees and other prevention options (e.g. hygiene concept). Whether the employer's knowledge of the employee's vaccination status is necessary for the performance of the employment relationship is a question which needs to be considered in each individual case and can be questionable if the employment relationship is also viable regardless of the employee's vaccination status.
One exception that could justify data processing is, according to art. 9 (2) (a) GDPR, the consent of the employee concerned. On the other hand, however, employers cannot rely on the fact that they cannot fulfil their obligations in any other way. This is because the employer can fulfil its duty of care relating to health protection even if it is unaware of the vaccination status of its employees and must, therefore, assume that none of its employees have been vaccinated. In this connection it should also be taken into consideration that, according to current knowledge, it is not certain whether the coronavirus vaccination creates sterile immunity, i.e. the vaccinated person could still carry the virus and continue to transmit it to his/her colleagues. Consequently, the data processing cannot be based on article 9 (2) (b) GDPR.
However, according to the German Protection against Infection Act (IfSG), an exception applies to healthcare facilities such as hospitals, doctors' practices or nursing homes (section 23a sentence 1 German Protection against Infection Act (IfSG)). In these areas, employers are allowed to enquire about the vaccination status of their employees and use this as a basis for their decision to enter into an employment relationship or the specific manner of employment.
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14. What liability risks exist for the employer in connection with coronavirus vaccinations being carried out by company doctors?
It is possible for employers to avoid liability for potential vaccination injuries, for example, resulting from a lack of information being provided by the person carrying out the vaccination, by drafting the contract accordingly. There is no reason to fear contractual liability on the part of the employer under a treatment contract provided the employer itself does not become a party to the treatment contract with the employee or the employee's family members, but rather the contract is concluded with a freelance company doctor.
With regard to the company influenza vaccination, the German Federal Employment Court (ruling dated 21 December 2017 – 8 AZR 853/16) decided that a treatment contract is not concluded with the employer in any case, but rather with the company doctor himself/herself if the following conditions are met:
- the company doctor is a freelance doctor who does not have an employment relationship with the employer;
- the company doctor invites people in his/her own name to be vaccinated and does not give the impression anywhere else that he/she is merely acting as an employee of the employer;
- the vaccination takes place in a publicly accessible area of the workplace where the employer does not usually provide treatments.
Provided the employer selects the freelance company doctor properly and carefully, it is also fulfilling the ancillary obligations that exist as part of the employment relationship pursuant to section 241 (2) German Civil Code (BGB). There is no risk of liability for clarification errors or wrongful treatment by the company doctor.
Tortious liability on the part of the employer under section 823 (1) German Civil Code (BGB) or section 831 German Civil Code (BGB) for injury resulting from a Covid-19 vaccination can also be ruled out provided the freelance company doctor was selected properly.
Ultimately, however, the obligations that need to be fulfilled by the employer also depend on whether the coronavirus vaccination is considered reliable and useful for society when the promotion of health that is being achieved is weighed up against the medical risks. This is supported by the current explicit recommendation from the Standing Committee on Vaccination (STIKO). However, current developments and the recommendations of the competent authorities must continue to be kept in mind and taken into account.
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15. What does an employer have to bear in mind if it does not have enough vaccine for all of its employees who are willing to be vaccinated?
If, due to a shortage of vaccines, an employer has to prioritise certain employees (groups) when offering its employees a vaccination, it is important that the principle of equal treatment under employment law is observed. There would need to be an objective reason for treating employees differently. It would, therefore, be permissible, for example, to give preferential treatment to field staff, and vaccinate them if they are exposed to an increased risk due to the large extent of (unprotected) contact they have.
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16. Does the works council have codetermination rights with regard to the coronavirus vaccination offered by the employer?
The introduction of a voluntary vaccination programme is not subject to codetermination.
There is no right of codetermination under section 87 (1) no. 1 German Works Constitution Act (BetrVG) (questions relating to order and conduct in the workplace) as offering the vaccination voluntarily does not introduce any compulsory regulations.
The right of codetermination under section 87 (1) no. 7 German Works Constitution Act (BetrVG) (regulations on health protection) presupposes a statutory provision that must be filled by the employer. Such a regulation is missing in the present case as the employer is not obliged to provide a coronavirus vaccination.
The employer's assumption of costs for a coronavirus vaccination can have a remuneration-like character as a voluntary fringe benefit within the meaning of section 87 (1) no. 10 German Works Constitution Act (BetrVG). However, the employer is free to determine the purpose of a voluntary benefit, the financial framework and the group of beneficiaries within the framework of its wage policy as this is not subject to codetermination. A right of codetermination with regard to the principles of distribution would only need to be taken into consideration if the amount of the benefit were to differentiate within the group of beneficiaries. This is not conceivable in the present case (as it is not possible to choose between different levels of vaccination).
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More FAQs about the effects of Coronavirus on German employment law
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