Can an employer require compulsory COVID-19 vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
There is no compulsory COVID-19 vaccination in Germany, although this is discussed controversially by politicians. However, there are several compulsory regulations dealing with health and safety requirements in order to avoid COVID-19 infections. These are frequently updated and are also depending on the laws of the German federal states. As of January 27, 2021, for instance, employers must offer home office solutions if there are no compelling operational reasons to require working in the office, or must ensure that only a minimum number of employees are working in the office. Compliance is very important, especially due to the risk of reputation damages or investigations by authorities (including criminal offenses).
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?
It is illegal for an employer to request that an employee receive a COVID-19 vaccination. Thus, the employee can refuse to be vaccinated. With respect to health and safety laws, the employer must comply with the statutory requirements. The implementation depends, however, on the operation, the workplace, the industry and various other aspects. In case of the existence of a works council, the works council may have various co-determination rights regarding the implementation. These rights need to be respected.
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?
Since there is no vaccination obligation, a refusal will not justify a dismissal or any other disciplinary action. However, if an employee violates occupational health and safety regulations, this is principally considered as a breach of contract (due to violation of side-duties). In exceptional cases, the violation can justify a termination. This needs to be assessed further on the basis of the particular case.
Dr. Michael Pils, Taylor Wessing