Corona vaccination: what employees and employers need to know

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Corona vaccinations raise labor law issues

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Can my employer ask me to have a corona vaccination?

No, he can't.

"The employee's personal rights would be limited too much by a company vaccination requirement," says Hendrik Bourguignon, specialist lawyer for labor law from Frankfurt am Main.

The Coronavirus Vaccination Ordinance, which came into force in November, does not provide for such a vaccination requirement for employees.

Therefore, the employer cannot order to be vaccinated.

The Infection Protection Act also means that you can decide freely.

To person

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Hendrik Bourguignon

has been a specialist lawyer for labor law since 2004.

He is dedicated to questions of individual and collective labor law.

Bourguignon is a partner in a law firm in Frankfurt am Main.

Regular testing of the staff, for example in nursing professions, is "quite conceivable," says Bourguignon.

A vaccination certificate is also conceivable as a recruitment criterion, according to the specialist lawyer.

“There will be a few more proceedings before labor courts here in the coming months.

Often it is a tightrope walk as to whether the employee's personal rights prevail or the particular pandemic situation. "

Is vaccination compulsory for employment relationships planned in the long term and could it be introduced through company agreements, for example?

A statutory vaccination for Covid-19 on the part of the government is not planned.

"That's why there is no such obligation in the context of the employment relationship," says Bourguignon.

So the decision as to whether you want to be vaccinated is your own.

It only makes sense that a compulsory vaccination requirement cannot be justified by a company agreement.

Do I have to tell my employer if I have been vaccinated against the coronavirus?

Yes you do.

Both in the current employment relationship and in the job interview: "The employer has a duty of care in the company, so in my opinion there are some reasons that he can ask employees about a vaccination and that they have to answer this question truthfully," says Hendrik Bourguignon.

What if i lost my vaccination certificate?

"If I lose my vaccination certificate, I would go to my family doctor and get a new one," advises Bourguignon.

Should there be a compulsory vaccination in some professional groups, as is being discussed by Bavaria's Prime Minister Söder (CSU) for the care professions, a vaccination pass would be required anyway.

Do I have the right to have my employer certify that I have a priority right to vaccination?

If you work in a professional group that has the highest vaccination priority, you generally have the option of having this certified by your employer.

»This is not expressly stipulated in the Coronavirus Vaccination Ordinance, but the employer has an increased interest in employees getting vaccinated.

So there should be little problem with issuing such a certificate, ”says Bourguignon.

Who will pay for my vaccination?

The state bears the cost of your vaccination.

Can I have a vaccination appointment during working hours?

And will I continue to be paid in such a case?

Employment lawyers generally advise that employees make their doctor's appointments outside of working hours if possible.

"If that is not possible in exceptional cases, the employee can keep the vaccination appointment while on duty, as long as it does not last long," says Bourguignon.

The absence should be discussed with the boss in advance.

You are still entitled to remuneration during a visit to the doctor, which must take place during working hours.

Are there any consequences if I don't want to be vaccinated?

If you decide against a corona vaccination, there must be no negative consequences.

"As long as there is no general compulsory vaccination, the employee also has the right to speak out against a vaccination," says Bourguignon.

Do special regulations apply to employees in health professions?

Markus Söder's suggestion to introduce compulsory vaccinations for nursing staff caused a stir.

If such a compulsory vaccination should become law in the nursing profession, an unvaccinated employee should, strictly speaking, no longer be employed.

"In the worst case scenario, the employee would face dismissal for personal reasons due to a lack of suitability," says Bourguignon.

more on the subject

• Debate about compulsory vaccination for nurses: Too dumb to vaccinate? A comment by Milena Hassenkamp

• Corona policy of the countries: 16 countries, 16 bunnies A column by Nikolaus Blome

• Icon: Spiegel Plus Federal states in comparison: Where the vaccination starts and where it doesn't

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This is the case when the employer no longer has any use for the unvaccinated employee.

In most cases, it shouldn't come to that.

Because beforehand, the boss would have to check whether the employee in the company cannot be deployed in areas in which vaccination protection is not absolutely necessary.

At the moment there is no compulsory vaccination for nursing staff.

Can my employer create incentives so that the workforce can be vaccinated?

It is under discussion whether employers could set up a voluntary company vaccination program.

However, that would have to be agreed with the works council, if there is one.

A vaccination program would mean that you would receive the vaccination earlier and free of charge, for example from the company doctor.

"The employer could also create incentives through vaccination premiums," says Bourguignon.

If you refuse to be vaccinated, this should not result in any direct disadvantages for you.

Important, not only when it comes to vaccination premiums: The principle that all employees must be treated equally must always be observed.

I am allergic and therefore do not want to be vaccinated - can I get an exception from compulsory vaccination?

Since there is currently no compulsory vaccination, the question does not currently arise.

"Should there be a compulsory vaccination, special cases would certainly also be regulated," says Bourguignon.

Can the employer deny me access to the company or social facilities, such as the canteen, if I am not vaccinated?

"Such measures are quite conceivable, yes," says Bourguignon.

You must be factually well justified.

In principle, however, the following applies: The labor law prohibition of measures, according to which an employee who decides against a vaccination, must not face any consequences, prohibits inadmissible discrimination.

What happens if I get Covid-19 and have not voluntarily been vaccinated?

"Since there is no compulsory vaccination, nothing happens at first," says Bourguignon.

Measles vaccination is mandatory for certain occupational groups.

I'm a little older and never got vaccinated as a child - but I had measles.

Do I still have to get vaccinated?

Adults born after 1970 are recommended to have a single measles vaccination if they have not previously been vaccinated or only vaccinated once, or if they are unsure about adequate protection.

"It then becomes difficult to make it clear that you are immune," says Bourguignon.

To do this, you would need to be able to provide a medical certificate of adequate immunity to measles.

What if I don't feel well after a vaccination - can I stay at home?

"The employee decides for himself whether he or she feels able to do the work," says Bourguignon.

Whether you feel bad after a vaccination is to be assessed as if you were sick at work if there is no pandemic.

In general, you do not have to present a certificate of incapacity for work for the first three days of your illness.

Any deviations from this must be noted in your employment contract.

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