While more and more companies in the U.S. are firing employees who do not want to be vaccinated, prohibiting them from entering the office premises without full vaccination protection, or only hiring vaccinated applicants, the question also arises in our country as to what options employers in Germany have under labor law if employees do not want to get vaccinated.
No legal obligation to vaccinate
According to the current legal situation, there is no legal obligation to vaccinate against COVID-19. For employers, this means that they cannot invoke the enforcement of a public-law obligation to vaccinate their employees if they request vaccination.
Vaccination obligation in the employment relationship?
If an employer's goal is to reduce the risk of infection in plants and production facilities and thus fulfill the employer's duty to protect all employees, the question arises as to whether mandatory vaccination can be introduced unilaterally by virtue of the employer's right to issue directives, collectively by means of a works agreement or collective agreement, or by means of an individual contract.
Right of direction
The employer's right to issue instructions must be exercised at its reasonable discretion and, in particular, must comply with the mutual duties of consideration (Section 106 GewO). Due to the serious encroachment of a vaccination obligation on the right to physical integrity and the general personal rights of employees, the employer's interest in only employing employees who do not pose a danger to themselves or others regularly takes a back seat in the balancing process. In principle, it therefore remains a private matter for the employee whether to be vaccinated. The employer's right of direction can therefore not in principle include the ordering of a mandatory vaccination. Vaccination is regularly not directly related to contractual obligations, so that a corresponding instruction would be considered invalid.
Collective obligation to vaccinate
Pursuant to Sec. 75 BetrVG, the parties to the works council agreement are bound by the principles of law and equity and must protect the free development of the personality. From these legal requirements, the German Federal Labor Court derives an indirect fundamental rights obligation of the parties to the works agreement. Therefore, the introduction of a vaccination obligation by works agreement is also inappropriate and not effectively possible due to the considerable encroachment on fundamental rights. In accordance with the legal nature of the collective agreement, the same applies to the introduction of a vaccination obligation by collective agreement.
Dismissal of unvaccinated employees?
Possible sanctions under labor law for employees who do not vaccinate include, in particular, dismissal for behavioral reasons or dismissal for personal reasons. A termination for behavioral reasons requires a significant and usually culpable breach of a contractual obligation. In the absence of an existing duty to vaccinate or effective instructions to vaccinate, this is therefore generally out of the question. At most, in exceptional cases, termination for personal reasons may be justified. The prerequisite is that the employee does not (or no longer) have the necessary aptitude and skills to perform the work owed. The employee would ultimately have to pose such a danger to others that he or she can no longer be employed - not even elsewhere in the company. This is, of course, only conceivable in rare cases.
Vaccination recommendation and offer
Employers are, of course, permitted to recommend vaccination against COVID-19 to their employees or to call on them to be vaccinated. However, the wording should be chosen carefully so that the recommendation or call for vaccination does not have a binding character. In addition, vaccination offers can also be made in the company, for example by the company doctor.
By providing vaccination rewards for proof of COVID-19 vaccination, employers have an additional opportunity to increase vaccination readiness in the workforce. For example, employers can provide employees with a one-time special payment, an additional day of vacation, or vouchers and other non-cash benefits. In this context, however, the question of compatibility with the general principle of equal treatment under labor law and the prohibition of dimensional regulation (Section 612a of the German Civil Code) is the subject of controversial debate.
It is true that the granting of a vaccination premium for vaccinated employees constitutes unequal treatment. However, this is justified as it is based on an objective reason: Vaccination is generally recommended and serves to fulfill the employer's duty of care towards its workforce.
In our view, there is generally no violation of the prohibition of measures here, as long as the granting of vaccination bonuses remains proportionate and does not unduly pressure employees to waive their right to physical integrity. Particularly when a vaccination bonus is paid, its amount should therefore be selected in such a way that the bonus is not likely to exert pressure on employees comparable to an obligation to vaccinate.
If vaccination premiums are to be granted, the right of co-determination of a works council existing in the company must be taken into account (cf. Section 87 (1) No. 10 BetrVG).
It remains to be seen how the current discussion on the introduction of compulsory vaccination for certain occupational groups will develop and how the aforementioned employer response options - in particular the granting of vaccination premiums - will be judged by the labor courts. If you are interested, my colleagues Thorben Klopp and Julia Radau will be happy to send you the EMEA vaccination guide.