Lansky

The coronavirus pandemic has changed our working lives to a significant extent. While some people spend more time working from home, many companies have switched to shift work or registered a large part of their workforce for short-time working arrangements. All these measures are intended to enable companies to maintain their operations as far as possible, while simultaneously providing maximum protection for workers and customers alike. 

With the approval of the first vaccines and the implementation of the national vaccination plan that has since been launched, many are buoyed with the hope that the pandemic can be defeated in the long term. These glimmers of hope are also to be found on the domestic labour market, bringing the ‘old normal’ back into the realm of possibility. But what about compulsory vaccination in the workplace? Should only vaccinated workers be allowed to enjoy the return to normality? What about people who stubbornly refuse the vaccine? Are they to be threatened with disadvantages at work, transfers, or even dismissal? In principle, employment relationships are characterised by mutual rights and duties. While employees have a duty to perform their work and to be loyal to their employer, employers have a duty of care. Employers generally have a duty to protect their employees’ health and life, but this must be weighed against the interests at stake. 

If the only way for employers to protect their staff is, to say nothing of third parties to whom they are obliged to provide protection (e.g. customers, patients), by vaccination of the entire staff, the employment relationship could also entail an obligation to receive the vaccination. Here it is important to note that lighter means, such as working from home, shift work, etc. must be used as a matter of priority. However, if it is not possible to achieve a return to normal, day-to-day working life in any other way, this vaccination obligation comes into play. This is especially true if the majority of the workforce has been vaccinated, with just a few workers refusing the vaccine. In this situation, the protection of the majority outweighs the individual’s desire not to be vaccinated. It is also important to bear in mind that, at present, we have no effective cure for coronavirus, meaning that vaccination is, ultimately, the only protection against a fatal outcome. 

For these reasons, the employees in question can even be dismissed without being given reasons if they refuse to be vaccinated, provided they are not covered by any special protection against dismissal. In future, applicants should assume that they will need to disclose their vaccination status at job interviews. In principle, job applicants are not obliged to provide information about their health or vaccination status at the interview stage. However, if it can be assumed that the life and health of people who the company is obliged to protect (such as customers or patients) are at risk, then there is indeed an obligation to provide this information. If the applicant does not have good reasons to refuse to provide this information, the company does not have to consider their application. 

There are certain exceptional cases where people can be exempted from vaccination. This applies to pregnant women, in particular. In addition, employees for whom vaccination is medically contraindicated can present a medical certificate to their employer to request to be exempted from vaccination. The costs of the vaccination are currently covered by the state. If the employer requires their employees to be vaccinated, the employer must also pay the costs incurred for this. 

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