Companies are keen to ensure that their employees do not become infected with the coronavirus and are absent for a long time due to illness. Therefore, many employers would prefer their employees to be vaccinated. But do they have the right to insist on such a thing?
Employees should only be vaccinated if required by law. And with Kovid-19 there is no such legal obligation. “However, there are exceptions for hospitals and other types of medical facilities, such as rehabilitation clinics or doctors’ offices,” said employment lawyer Michael Felzer.
“These medical institutions must certify that they have taken the necessary measures to protect all their employees from infections and infections. It is curious that this obligation does not apply to old people’s homes, although the situation there is similar,” Felzer said.
But even in the listed medical establishments the employer has no right to oblige the staff to be vaccinated. However, it must ensure that the non-immunized pose no risk to patients. In other words, for the protection of patients, it may be necessary for non-immunized staff to not be allowed to work in certain places.
The importance of immunization status
In principle, the employee is not obliged to inform his employer whether he has been vaccinated or not. But as Arnd Kempgens, who is also an employment lawyer, points out, companies are required to take action to protect their employees. However, they could only do so if they knew whether the employee concerned was immunized or not.
Therefore, Kempgens believes that from the point of view of labor law – exceptionally – it may be necessary for employees to declare their immunization status to their employer and possibly even prove it.
Is pressure permissible?
There are a number of cases in which employers encourage their employees to be immunized through various bonuses – such as a sum of money, additional leave or a voucher.
Such a practice exists mainly in the United States. Attorney Felzer disapproves of this approach because such gifts put unacceptable pressure. However, some unions in Germany believe that under certain conditions, such incentives are acceptable.
If there is no legal obligation to vaccinate, the employer has no right to exert pressure – neither through regulations, nor through threats of relocation or even dismissal. Such measures would be an offense. Attorney Kempgens, however, notes: “Recently, we are increasingly learning about such cases – there is pressure to persuade those who do not want to be vaccinated.” In such cases, employees could file a complaint against employers in the labor courts.
If there is no obligation to immunize, the employer has no reason to “discriminate” against the unvaccinated – for example, when choosing who to promote. In medical institutions, however, the situation is different – there job applicants can be rejected if they are not immunized and do not want to be immunized.
Do employers have the right to divide people into vaccinated and unvaccinated?
“In my opinion, this is even mandatory,” says Kempgens, adding: “As with administrative measures, it would be difficult to find an excuse from labor law to justify imposing restrictions on vaccinated people.”
According to Felzer, the privileges are acceptable – for example, the earlier return of immunized employees from work at home to work in the office. However, incentives or pressure through such privileges should not be disproportionate.
The material is published in DW
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