*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Has vaccination been made mandatory in your jurisdiction?
No. Although this is currently being discussed for particularly sensitive areas (e.g. employees in nursing homes or hospitals), there is currently no COVID vaccination duty in Germany.
Can an employer require employees to get the COVID vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
No. In fact, this would be tantamount to compulsory vaccination, as unvaccinated employees would not be able to perform their contractually owed work. Since the German legislator has decided against mandatory vaccination, the employer is not able to introduce a vaccination duty "through the back door".
Can employers require the wearing of masks in the workplace?
Yes, the employer is obliged to implement an occupational infection protection concept, which may also include the wearing of masks. However, it must always be noted that the so-called TOP principle applies in German occupational health and safety law. Technical measures must be taken first, then Organizational measures, and only lastly Personnel measures. The employer must therefore first check whether infection protection cannot be achieved by other measures such as rearranging workplaces or setting up partitions. However, it should be noted that some federal states currently stipulate that masks must be worn in the office unless the employees are at their own workplace/desk.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Yes. There is no mandatory vaccination in Germany. Accordingly, employees do not have to be vaccinated. Conversely, the employer does not have to require it. The occupational infection protection concept may not and does not have to provide for vaccinations.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
No. This would only be conceivable in the theoretical case that the employer's customers/business partners completely refuse to work with unvaccinated employees, so that the employer can no longer deploy an unvaccinated employee.
What benefits or accommodations do employers have to make for vaccinated employees?
Employers can offer vaccination premiums. There are no legal requirements, but various models are conceivable. For example, individual premiums can be offered in return for proof of vaccination. A premium can also be linked to the vaccination rate in the company. All employees of the company can then receive a premium if, for example, a vaccination rate of 95% is achieved among the workforce. Premiums can be granted in money, but also through other benefits such as days off.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
No. As long as the employer has implemented an occupational infection protection concept, employees have no right to refuse to work. In no case can work be refused on the basis of unvaccinated colleagues.
In your country, are employers required to provide paid leave for employees to get vaccinated?
Yes. Employers in Germany are obliged to provide paid time off for the employee to attend the vaccination appointment.
Contributors
Taylor Wessing
Dr. Johannes Höft
j.hoeft@taylorwessing.com
Dr. Michael Johannes Pils
M.Pils@taylorwessing.com