Freiburg, 6 August 2024 – The international law firm ADVANT Beiten has advised H…
As there is currently no approved vaccine against "Corona" but next winter is approaching, this blog unfortunately only addresses voluntary flu vaccination at the workplace. However, the explanations given here may - hopefully soon - be transferable to voluntary corona vaccination at the workplace. As every autumn, many employers offer their employees free flu vaccinations at the workplace or at the employer's premises during working hours. There is no easier and convenient option for employees.
Yet employers also have a considerable own interest in in-house flu vaccinations. For each employee and each vaccination, the costs of the vaccine and the physician amount to around EUR 20 to EUR 30 plus a few minutes of working time. This is far less expensive for employers than a wave of influenza in the company and the incapacity to work of some or many employees for days and weeks due to illness.
Employers are entitled but not obliged to offer (free) flu vaccinations at the workplace. Employers have a duty of care for their employees and they must do or refrain from doing anything to keep harm away from the employees. This applies, though, in particular to operational risks induced within the company and not to general health risks. Flu vaccination is part of general health care and is a private matter for the employee. There may be exceptions in medical or nursing professions. Flu vaccination may be compulsory to protect patients in hospitals or high-risk residents in nursing homes from the flu.
Are employers liable for vaccination damage in the case of voluntary flu vaccinations offered at the workplace if workers face medical problems after vaccination? The BAG had to decide on vaccination damage suffered by an employee after a voluntary flu vaccination at the employer's premises. The employee had suffered severe pain at work as a result of the vaccination, with a permanent and significant restriction of movement in the cervical spine. She was no longer able to work and demanded compensation for pain and suffering from her employer and asserted other claims for material and non-material damages.
The BAG rejected claims for damages against the employer due to the flu vaccination of the affected employee. As the BAG found, the employer did not conclude a treatment contract with the employees. Thus, the employer did not violate any obligation from a treatment contract or from the existing employment contract. In such a case of voluntary influenza vaccination, the employer was solely responsible for the proper selection of the medical staff carrying out the vaccination. However, there is no duty on the part of the employer to ensure that the attending physician provides proper information or to supervise the physician in carrying out the vaccination. This would not be possible especially given the large number of employers who are not active in the medical field.
Employers who offer flu vaccination at work should ensure that, on the one hand, there is no obligation to vaccinate on a contractual basis but that it is done voluntarily. On the other hand, care should be taken that no treatment contract is made between employer and employee but only between doctor and employee. As a matter of precaution, it can also be considered to cover any damage by insurance.
A time without the flu, stay healthy and warm (labour law) greetings from Munich
Yours,Dr Erik Schmid
