"First Employer to Kick Out Vaccination Refusers"

Much is said and much is written about these two stars. They are being protected by bodyguards - as is appropriate for big stars. The two are much sought after, many want to see and feel them, but - also typical for stars - they show themselves too rarely at the moment. These two stars do not have ordinary names but have given themselves stage names: "Tozinameran" and "mRNA-1273". This is not about film, music or sports stars. Since 21 December 2020, "Tozinameran" by Biontech/Pfizer and since 6 January 2021, "mRNA-1273" by Moderna/NIAID has been approved by the European Union as a vaccine to protect against the corona virus infection (SARS-CoV2). Still, not everyone will let the two stars come close to them and not get vaccinated. In the last few days I read the following headline: "First boss kicks out vaccination refusers".

Dear Readers.

A discussion has developed on whether the corona vaccination is mandatory for employees, especially for those in the nursing and medical sector, and whether sanctions under labour law such as warnings or dismissals are permissible in the case of refusal to vaccinate.

Compulsory vaccination? Not (yet) provided for by law

Currently, the vaccine is in short supply. This could be the reason why the legislator has not yet introduced a compulsory corona vaccination. But that could change (soon) if vaccine is available for everyone. Until then, vaccination against the corona virus is voluntary. Section 20 (6) sentence 1 German Infection Protection Act (IfSG) provides for the legal possibility of compulsory vaccination. On this basis, a corresponding mandatory vaccination was introduced in March 2020 by the so-called "Measles Protection Act".

Are employers entitled to impose a corona vaccination?

When considering whether the employer's right to give instructions also extends to the corona vaccination, the interests of the employer (maintenance of business operations, health of employees) and the interests of the employee (right of personality) must be weighed against each other. For previous vaccinations, such as the flu vaccination, the employee's right of personality prevails and it cannot be imposed by the employer by virtue of the right to give instructions. Since the corona pandemic is not comparable to an influenza wave (deaths, course of the disease, overload of the public healthcare system, immunity), the employee's right of personality is further subordinated. In any case, a compulsory vaccination imposed by the employer for (certain groups of) employees is not generally excluded. Especially in the case of medical and nursing staff, a corona vaccination ordered by the employer could be effective. On the one hand, this particularly vulnerable occupational group is a potential multiplier among risk groups, and on the other hand, this occupational group is absolutely essential for maintaining medical care during the pandemic. Should there no longer be sufficient hospital staff available for corona patients, at the latest, compulsory vaccination would have to be considered.

Labour law sanctions in case of refusal of vaccination

Can employees who refuse vaccination be faced with sanctions under labour law? According to the press in recent days, there have already been the first terminations of employment.

Employers are entitled to demand certain prerequisites from their employees for the contractually agreed activity. For instance, the compulsory wearing of helmets on construction sites. If the employee does not put on a helmet, the employee cannot be employed. This can also be applied to the corona vaccination. If the employer only employs vaccinated staff for activities with direct contact with residents and patients, the employer could no longer employ non-vaccinated persons in accordance with the contract. Insofar as other employment opportunities do not exist, the employment of the employee is impossible. The employer would be entitled to sanctions under labour law, such as withholding remuneration or terminating the employment relationship for personal reasons.

Warm and healthy (labour law) greetings from Munich

Best regards

Dr Erik Schmid