COVID-19 vaccination and testing in Germany - employment law perspective

  1. Vaccination
    1. 1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 
    2. 2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?
    3. 3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?
    4. 4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?
    5. 5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).
    6. 6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 
    7. 7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?
    8. 8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?
    9. 9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.
    10. 10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 
  2. Testing
    1. 1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 
    2. 2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?
    3. 3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?
    4. 4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?
    5. 5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Vaccination

1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 

The employer can always raise awareness and inform employees of the benefits of a COVID-19 vaccination. The employer can also encourage vaccinations by allowing vaccinations during paid working hours. 

Moreover, the employer can provide incentives to encourage vaccinations (e.g. one-time bonus, additional holidays, etc.). The incentive must be moderate so that employees can take a voluntary decision for or against vaccination. Works councils may claim codetermination rights in this situation. 

2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?

In principle, the employer is not obliged to offer employees the opportunity to be vaccinated against COVID-19, but can offer vaccinations via company medical officers at the company premises.

3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?

Without the employee's explicit consent, the employer can neither verify who has been vaccinated nor record these employees. Exceptions might apply for employees in sensitive areas with a very high risk of exposure (e.g. nursing, medical personnel, etc.). Further political and legal developments can be expected. 

4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?

No. Vaccination status is sensible health data and is irrelevant for the performance of work, as the employer can continue the existing technical and organisational protective measures (e.g. masks, social distancing). The employee is not obliged to inform the employer of his vaccination status. 

5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).

No, employers cannot make vaccinations compulsory apart from vaccinations stipulated as mandatory by law. There is no statutory obligation to vaccinate against COVID-19 in Germany. 

However, there is a discussion in Germany whether exceptions apply for employees in sensitive areas with a very high risk of exposure and infection (e.g. nursing, medical personnel, etc.). Further developments in this area should be monitored.

6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 

Yes, employees can refuse to be vaccinated. They do not have to justify or explain their decision to the employer.

7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?

The employer can deny unvaccinated employees access to company premises. However, in most cases these employees must be paid wages. As long as the employer can resort to the existing technical and organisational protective measures (e.g. masks, social distancing, home office, etc.), more incisive measures would be inappropriate.

In parallel, the employer can refuse access to employees deemed infectious in order to protect other workers.

8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?

Yes. It is within the employer's discretion to treat employees differently if they have (voluntarily) provided evidence of having been vaccinated.

In this case, the employer can divide vaccinated and non-vaccinated employees into different teams and ease measures for the first group (e.g. opening social facilities, returning to the office, etc.).

9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.

Legislation on business travel and restrictions to enter Germany are evolving. 
Entrants to Germany do not require proof of vaccination. Instead, an entrant must firstly justify why he is entering Germany and secondly observe the laws of the respective Federal State (Bundesland) in which he will be staying after entering.

Before entering Germany, an entrant must register at https://www.einreiseanmeldung.de and carry confirmation with him upon entry. 
In addition, the entrant must be tested no later than 48 hours after his entry and present the test certificate to the competent authority if requested within ten days of entry. Evidence is a medical certificate or the result of a COVID-19 test. Individuals entering from an area with a high risk of a SARS-CoV-2 infection,  are required to test before departure. The entrant must present proof of this test when entering Germany or to the travel agent at departure. 

After entrance, the person must obey the law of the respective Federal State (Bundesland). This may include quarantine if the person has stayed in a risk area within ten days prior 

10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 

Like the entire pandemic, developments as well as political and legal reactions are difficult to foresee. Companies would like to offer vaccinations to employees. Like annual influenza vaccinations, this will be possible as soon as the vaccine is more widely available. 

Testing

1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 

No. As a general rule no medical tests or examinations can be carried out in order to obtain medical information on an employee's state of health without the employee's consent, and is therefore only possible on a voluntary basis. Exceptions include specific suspicion of a SARS-CoV-2 infection (typical symptoms) in workplaces where the employer cannot prevent contact with colleagues. Moreover, testing without cause has been discussed for employees with a particularly high risk of infecting third parties (e.g. due to close contact with people). 

Some German federal state laws provide for regular testing of employees with direct customer contact.

2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?

N/A

3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?

In the case of a positive COVID-19 test, the employee is obliged to inform the employer as he must fulfil his duty of care and protect the health concerns of other employees. One exception is if infection of colleagues can be excluded (e.g. due to work in a home office).

4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?

Currently employees can refuse to be tested if there is no specific risk to infect others. 
Under certain circumstances (increased risk of infection), testing can be mandatory and the employer would not owe wages or be able to take disciplinary action if the employee refused to be tested.

5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Yes. See answers 7 and 8.