It is currently unclear when the central government's urgent advice to work from home will cease and employees will return to the workplace in greater numbers. Nevertheless, employers would be well advised to start thinking now about what working during (the aftermath of) Covid-19 will look like and to investigate what rights and obligations employers and employees will have at that time. This is especially true with regard to employee vaccinations against Covid-19. What exactly can employers require of their employees?
The question of whether employers can mandate vaccinations can be answered quite simply: it is not a possibility. This follows from the fundamental right of employees to inviolability of the body and respect for privacy. The Covid-19 outbreak did not restrict this fundamental right. Vaccination is and will therefore remain a free choice for everyone. The question then arises as to what options are available to the employer?
If an employer would still like its staff to be vaccinated, then the option remains to encourage staff to be vaccinated. This can be done, on the one hand, by properly informing the staff about the benefits of being vaccinated. On the other hand, an employer has several employment law options that he can use to encourage staff. For example, the employer can make work time available for vaccinations and offer to reimburse travel expenses.
However, encouraging employees must remain "non-committal encouragement" and must not in any way be coercive. After all, there is a relationship of authority between an employer and an employee. Thus, the employee must not feel compelled to proceed to vaccination for fear of reprisals in the employment relationship.
Further, an employer may not ask employees whether they have been vaccinated. This is because this is special personal information about an employee's health. An employee is not required to disclose this information. Moreover, from any refusal of an employee to answer, the employer could infer that the answer would not have been the desired one. Therefore, the question should not be asked at all. Employees may, however, reveal of their own accord whether they have been vaccinated. If an employee does so, the employer may not then record that information. This is because the General Data Protection Regulation (AVG) prohibits the employer from processing the special personal data in such a situation.
Can an employer attach other consequences to a refusal to vaccinate, for example by denying an employee access to the workplace? The basic principle is that this is not allowed, because in doing so the employer is attaching consequences to an employee's invocation of a fundamental right. However, there are conceivable situations in which the risks are so great that an infringement of the employee's fundamental rights nevertheless seems justified. Consider employees who care for very vulnerable patients and where the risk of Covid-19 infection cannot be sufficiently reduced in any other, less drastic way. In such a case, it might be possible to have employees who refuse to be vaccinated perform other suitable work.
This does have an important disadvantage, namely that the employer may not ask whether employees have been vaccinated. A solution will therefore have to be found, for example by voluntarily allowing employees to choose other suitable work without indicating whether they have been vaccinated or by having the company doctor (possibly together with an occupational expert) find out whether there are employees who are currently not suitable for their own work. However, due caution and care must be taken in this regard.
In short, the employer has few options beyond "informally encouraging" employees to get vaccinated. Good communication is very important here, to prevent employees from feeling forced to get vaccinated anyway. In special situations, the employer may require employees who do not get vaccinated to perform other suitable work. Restraint is appropriate here.
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