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German Trade Union Confederation
Can my employer request that I get vaccinated against corona? Can I keep an appointment during working hours - and who will then pay my salary? Am I entitled to regular rapid tests at work? Our guide answers the most important questions about vaccinations and tests for employees and works councils.
DGB / Anawat Sudchanham / 123rf.com
As of May 21, 2021
Questions and answers about the corona vaccination
Vaccination against Corona: How is that to be assessed from a trade union point of view?
The DGB and its member unions believe that effective vaccinations are important for successfully fighting pandemics and immunizing the population against dangerous diseases.
In view of the continuing dynamic situation with regard to the spread of the SARS-CoV-2 coronavirus and the COVID-19 disease caused by it, the DGB believes that it must be ensured that access to vaccines is broadened on the one hand and precisely controlled on the other in order to achieve a To achieve faster vaccination coverage of the population and thus a crucial component for a rapid containment of the corona pandemic. All of this against the background that both the health of people and our social prosperity can only be secured in the long term if we overcome the pandemic, distribute the consequences fairly and support and secure, strengthen and secure the welfare state, the employed and the economy in the crisis Remove.
Is there a compulsory vaccination or is one planned?
There is no legal obligation to vaccinate against Sars-CoV-2. It cannot currently be assumed that such an obligation will be introduced. The Corona Vaccination Ordinance only regulates the right to vaccination against the SARS-CoV-2 coronavirus. This also applies to the employment relationship.
Can my employer require me to be vaccinated against the Sars-CoV-2 coronavirus? Can he take action against me if I don't want to be vaccinated?
In principle, the employer cannot request such a vaccination unless it is required by law for certain groups of employees. This is not the case with corona vaccination. The principle of voluntariness also applies with a view to § 23a IfSG.
Since there is no compulsory vaccination, the employer cannot take action against those who are not vaccinated or who do not intend to. The employer therefore remains obliged to work - with or without vaccination - under the employment contract. There must also be no discrimination in the employment relationship based on the vaccination status. Should an employer nevertheless make contractual employment dependent on a vaccination and, for example, refuse access to the company or a part of the company, he may be in default of acceptance. Then the employer still has to pay the remuneration if employees otherwise offer their work properly.
Can a vaccination obligation be introduced in my company on the basis of a company agreement?
According to Section 75 (2) BetrVG, company parties have to respect and protect the personal rights of employees in their regulations. From this it follows that an interference with the physical integrity in the form of a mandatory vaccination obligation cannot usually be justified even by a company agreement. A compulsory vaccination obligation through a company agreement cannot therefore be effectively introduced.
Can the employer deny me access to the company or social facilities, such as the canteen, if I am not vaccinated?
No, he cannot do that in principle. The labor law prohibition of measures from § 612a BGB prohibits not only the discrimination of employees who exercise their rights in a permissible manner (e.g. right to vaccination), but also the opposite case of discrimination against employees who do not want to exercise their right (to vaccination).
Incidentally, when accessing social facilities, the employer is still obliged to ensure compliance with occupational safety in the company - this includes hygiene and distance rules as well as other occupational safety measures. According to the TOP principle, technical measures take precedence over organizational measures and these in turn take precedence over personal measures. The rules of occupational health and safety to be observed apply to employees regardless of whether they are vaccinated or not.
Do I owe my employer information about whether I have been vaccinated against Corona?
No, you usually do not owe this information to your employer. Apart from the legally regulated measles vaccination requirement - this has been in force since March 1, 2020 for employees in daycare centers and schools, for example - vaccination is a private matter for employees. As long as there is no public law obligation to carry out the corona vaccinations, the processing of relevant health data of the employees is usually permitted if the persons concerned have previously given their voluntary consent. However, voluntary means that the disclosure of data may not be linked to any advantages or disadvantages for the person concerned (Art. 7 Para. 4 GDPR).
As an exception, there could be an obligation to provide information if the vaccination is a mandatory requirement for the performance of a certain activity, for example if vaccination protection against certain diseases is an essential requirement for an essential foreign business trip in order to enter the respective country - this applies, for example, to the yellow fever vaccination in some Central African countries. It is currently difficult to assess whether this mandatory requirement will be transferred to the corona vaccination.
Can I have a vaccination appointment during working hours? Does my employer have to give me time off for this?
In principle, employees are encouraged to schedule preventive health care appointments outside of working hours if possible. In the case of the corona vaccination, employees currently have no leeway in making appointments. If employees are only offered appointments during working hours, they have the right to stay away from work for the appointment. The employer must be informed of the absence from work as early as possible.
What happens to my remuneration if I have to attend the vaccination appointment during working hours?
The German Trade Union Federation (DGB) and its member unions have demanded a clear statutory right for employees to be released from work for the corona vaccination appointments while continuing to pay their remuneration. However, the regulation does not provide for this right.
In principle, the principle that employees do not lose their right to remuneration if they are temporarily prevented from performing their work for personal reasons through no fault of their own applies to the observance of vaccination appointments (Section 616 sentence 1 BGB). However, this regulation can be changed contractually (through collective agreements or employment contracts) or waived. Numerous collective agreements and individual contracts exclude this right. It therefore always depends on what is regulated in the agreements applicable to the respective employment relationship.
Will there be any legal consequences for me if I do not get vaccinated against the coronavirus even though I was offered a vaccination?
The employer cannot sanction the lack of vaccination, as there is neither a statutory vaccination requirement nor can it be introduced by the employer.
Employees who suffer a loss of earnings as a result of the quarantine (e.g. if they cannot work from home during the quarantine) are generally entitled to compensation for their loss of earnings from the state (Section 56 (1) IfSG). This right does not apply if the quarantine order would have been avoidable through the use of a vaccination that was publicly recommended (Section 56 (1) sentence 3 IfSG). However, it is currently not clear whether the use of the corona vaccination can actually avoid the quarantine order. According to a current decision, people can be considered contagious despite being vaccinated and therefore placed in quarantine (VG Neustadt ad Weinstraße, decision of March 15, 2021 - 5 L 242/2; 5 L 243/21, however, VG Münster of April 19, 2021 - 5 L 255/21; VGH BaWü of April 9th, 2021 - 1 S 1108/21). Conversely, it is therefore doubtful whether those who are not vaccinated despite the possibility of being vaccinated can be excluded from the compensation payment if quarantine is ordered because of the lack of vaccination.
What happens if I get COVID-19 and I have not voluntarily been vaccinated?
Employees who contract COVID-19 and are therefore unable to work must be treated like other employees. This means that they will initially receive continued wages in the event of illness from their employer for up to six weeks (different regulations are possible in favor of the employees) and then the sick pay from the health insurance company. This rule also applies if an employee falls ill with Covid-19 even though he could have been vaccinated.
In some cases, the view is that in the case of a corona illness, which currently always entails a quarantine order, the incapacity for work is not due to the illness, but due to the official order, so that the employer is not obliged to continue paying wages. Correctly, however, the quarantine order is not the cause of the loss of work, but the consequence of the illness. The Federal Labor Court decided years ago that in this case the right to continued remuneration still exists (BAG, judgment of April 26, 1978 - 5 AZR 7/77).
Under certain circumstances, employees can lose their entitlement to continued payment in the event of illness if they are responsible for their illness. This presupposes, however, that they have exposed themselves frivolously or even deliberately to risks in a way that seriously violates "the behavior that can be expected of a reasonable person in their own interest" (according to the labor courts). The mere fact that a recommended vaccination was not taken does not constitute grounds for such a violation. This also applies to other diseases for which vaccinations are available and recommended.
Questions and answers about testing for Corona / Sars-Cov2 viruses
What is the position of the DGB and its member unions on the subject of testing?
In the current efforts to contain the spread of the Sars-Cov2 virus in Germany, the possibility of determining an infection by means of a so-called rapid test is becoming increasingly important.
Low-threshold access to testing options is important as a component in a strategy to contain the infection process. In this way, the infection process on site can be detected promptly and targeted measures can be initiated. The DGB and its member unions expect employers to provide their employees with free tests. In principle, it also makes sense for employees to take advantage of the testing facility in order to contain the incidence of infection.
For this purpose, the employees should have the opportunity to carry out the test as a self-test at home. This enables the risk of infection to be minimized in advance and the stigmata of a positive result on site in the company to be avoided. Employers are required to work with their operational actors (occupational safety specialists and company doctors) to create appropriate acceptance in the workforce through education and training and then to develop operational implementation in the form of group test strategies. The company interest groups are to be consistently involved and included.
If the testing is carried out by medically trained personnel and not as a self-test, the test results must be handled in accordance with data protection regulations and in accordance with other medical findings.
At the same time, however, it should be noted that a negative test result, i.e. a result in which no corona viruses are detected, does not rule out a SARS-CoV-2 infection! According to the applicable rules of occupational health and safety law, testing is not part of the mandatory hygiene and protective measures that employers have to take to contain the Sars-Cov2 pandemic in accordance with the Sars-COV-2 Occupational Safety and Health Ordinance and the Sars-COV-2 Occupational Safety Standard. Overall, in accordance with the TOP principle of Section 4 ArbSchG, technical measures must take precedence over organizational measures and these take precedence over personal measures. The test result is only a snapshot. Testing does not replace occupational health and safety in the company. It is therefore essential in any case that the (work) protective measures are still adhered to even if the test result is negative!
As an employee, do I have the right to a corona test?
Since April 22, 2021, the SARS-CoV-2 Occupational Safety and Health Ordinance has stipulated that the employer, if they do not work exclusively in their home, should test at least twice per calendar week for a direct pathogen detection of the SARS-CoV coronavirus. 2 has to offer. Thus, there is a general legal obligation of all employers to offer their employees corona tests to the specified extent.
In addition, there are regulations in some federal states (including North Rhine-Westphalia, Hesse, Berlin and Saxony), which also establish an obligation for employees to undergo a test for individual industries.
Details can be found at: ver.di - FAQ: Information for employees.
Can the employer ask me to undergo a corona test?
Every test for an infection, including a rapid corona test, is fundamentally an encroachment on the right to physical integrity (Art. 2 II 1 GG). The general right of personality guaranteed by Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law also protects self-determination about one's own body.
Wherever employees are required by regulations to undergo testing, the employer can generally enforce the obligation to test. Such a legal basis can be found in the statutory ordinances of the countries that introduce an obligation to test for Sars-Cov2 for certain groups of employees (see the last question), for example for employees in care facilities. The refusal to undergo a test could (in addition to the sanctions provided for by the relevant statutory ordinance) generally have consequences under labor law for these employees.
However, it is partly controversial whether the state regulations that introduce compulsory testing are compatible with higher-ranking law. For example, the Bavarian Administrative Court recently partially suspended the Bavarian Infection Protection Ordinance (VGH Munich, decision of 02.03.2021 - 20 NE 21.353) which requires the employees of the old people's and nursing homes there to be tested three times a week. The court said that a specific suspicion of infection was required for the test to be compulsory, but this could not be generally accepted here.
In the absence of a corresponding legal basis, employers cannot unilaterally oblige employees to undergo testing. This possibility is not covered by the right of direction. If employers are not ready to employ employees without a corresponding test (without there is a public law basis for the obligation to test) they are in default of acceptance and owe the wages according to § 615 BGB. Labor law sanctions against these employees would be inadmissible according to § 612a BGB.
The employer intends to introduce mandatory tests for employees and would like to conclude a company agreement. Is he allowed to do that?
This question has not been clarified by the highest court. However, it should be noted that the parties to the company must protect and promote the personal rights of the employees in their regulations (Section 75 (2) BetrVG). From this follows the obligation of the company partners to refrain from anything that violates the personal rights of the employees. The gain in security by testing all employees cannot justify the interference with the physical integrity against the will of the person concerned. The introduction of a test obligation in the company solely on the basis of a company agreement should therefore be inadmissible. A voluntary test option, for example via the company doctor or as a self-test, can be created; the works or staff council must be involved in the design of this option.
How should works and staff councils be involved in the implementation of tests in companies and departments?
Works councils (Section 87 (1) No. 1 and 7 BetrVG) and staff councils (Section 75 (3) No. 10, 11, 15 BPersVG or corresponding state employee representation regulations) have a right of initiative with regard to the provision of Covid-19 tests in companies and departments too. Likewise, expansion and restriction of the duties of the company doctor or the medical examiner are subject to mandatory co-determination. Works and staff councils should ensure that tests carried out by third parties are only carried out by qualified personnel and that insofar actively demand their participation rights.
If the employer makes tests available on a voluntary basis or is obliged to do so on the basis of an ordinance, works councils and staff councils are to be involved in the preparation and implementation of the Covid-19 tests in companies, in particular in the case of:
- the definition of the group of authorized persons and the time intervals between the tests;
- the choice of manufacturer and product;
- the selection and, if necessary, training of the staff to carry out the tests;
- the handling of the test results including the protection of employee data;
- intended measures in the event of positive tests.
Further information on the rights of company interest groups can be found at ver.di, for example.
What applies to me when I visit other companies; for example, because I'm working in the field or visiting a customer company? Am I subject to a mandatory test that applies there?
In principle, it is possible that employees of a food supplier or a technology company who are employed in facilities in which testing is mandatory on the basis of state regulations (e.g. a nursing home), as well as the employees of the facility, can be asked to test.
Whether you have to undergo the test in an individual case or whether you can refuse the test cannot be answered in general, but must be decided on a case-by-case basis, depending on the weighing of mutual interests.
In my company, the test is mandatory. Do I have to take this test outside of working hours?
No, you don't have to. This time that you need for testing in the company (including waiting for the test result) is considered working time and is to be paid for by the employer as working time.
Questions and answers about relief for people who have been vaccinated and those who have recovered from COVID-19 disease
With the adoption of the COVID-19 Protective Measures Exception Ordinance, the Federal Government has decided to make it easier for people who have been vaccinated and who have recovered from the COVID-19 disease with effect from May 9, 2021. With the increasing spread of the Sars-CoV-2 vaccination, there is also a need for clarification from the point of view of the employees.
How does a vaccination against Sars-Cov2 affect my rights as an employee? Can I demand special treatment from my employer in the company, for example an exemption from the obligation to adhere to the distance rule or to wear mouth and nose protection?
With the passing of the so-called COVID-19 Protective Measures Exceptions Ordinance, certain restrictions that the Infection Protection Act provides to contain the pandemic no longer apply to those who have been vaccinated and recovered, such as exit or contact restrictions and quarantine obligations. However, these essentially affect people's private life and have no direct impact on working life.
The vaccination against Sars-Cov2 - like other medical interventions - is in itself a private matter for each employee. As a rule, there is also no connection between the proper performance of the work and the lack of vaccination. As a rule, the employer has no right to information about the vaccination status of the employees and this in turn has no obligation to provide information to the employer. Rather, the employer is obliged to protect the employees' right to informational self-determination. Special treatment of the vaccinated is out of the question because the employer would need information about the vaccination status. Rather, the employer is still obliged to maintain the existing measures for occupational health and safety in his company and to ensure that all employees can do their work - also against the background that, according to current knowledge, a full vaccination is not a complete one Protection against transmission of Sars-Cov-2 or illness to Covid-19. This also means that employers must continue to give employees the opportunity to work from home and work towards compliance with distance and hygiene rules in the company. The employees - regardless of their vaccination status - are in turn obliged to participate in the implementation of these measures. Specifically, this means that vaccinated persons cannot demand that different rules apply to them than to the rest of the workforce.
Does it mean that the restrictions must be accepted by everyone without distinction?
The health protection measures at work are not linked to the vaccination status of the employees, so they apply to everyone first of all. Even in the time when there is no nationwide vaccination offer for all employees, there is no room for corresponding unequal treatment in the workplace. As soon as a corresponding comprehensive vaccination offer has been made available to all those entitled to vaccinate, so that everyone has the opportunity to protect themselves through vaccination, it is no longer to be expected that appropriate protective measures and the associated restrictions will continue to be necessary. By then at the latest, vaccinated and non-vaccinated employees should be able to pursue all activities indiscriminately.
Can participation in certain events or further education and training be made dependent on the vaccination? Conversely, can I ask my employer to give me the opportunity to take part in face-to-face events because I have been vaccinated?
The same applies here: the vaccination status of the employees is basically nothing to do with the employer. Therefore, participation in business events must not be made dependent on it. On the basis of state regulations, however, it may be necessary to bring a negative corona test for participation in face-to-face events from a certain number of participants. Those who have recovered and who have been vaccinated are treated equally with those who have tested negative under certain conditions. In these cases, full vaccination protection can release you from the obligation to test. Vaccinated employees can therefore voluntarily invoke this exception; however, there is no disclosure obligation in this regard.
What is to be made of the fact that some employers offer “vaccination premiums” or other benefits such as additional vacation days if they can provide evidence of a vaccination against Covid-19?
The debate about the financial incentives for employees to decide to vaccinate ignores the current needs and opportunities. A vaccination decision is a personal decision that should be made free of pressure. We therefore reject financial incentives intended to induce employees to make vaccination decisions. Anyone who wants to be vaccinated voluntarily and currently has the opportunity to do so should be supported by employers, but not through financial incentives, but by creating the conditions for employees to receive advice on vaccination during working hours as well as be able to have the vaccination during working hours. Employers can and should make their contribution by releasing employees from work to give vaccination advice and attend vaccination appointments without any financial loss. Education with the help of evidence-based and science-based information is also decisive for the employees' willingness to vaccinate. Employers can contribute to this by offering fact-based information campaigns in companies. Finally, as soon as sufficient vaccine is available, employers can also have the vaccinations carried out in the company by company and company doctors. The money would be spent much more sensibly on these measures than on the premiums.
In addition, there are weighty legal arguments against the admissibility of all pressure or incentive instruments in connection with the vaccination against Sars-Cov-2. It contradicts the obligation of employers to protect and promote the free exercise of basic rights by employees in a company context if they want to influence their decision about an intervention connected with the voluntary vaccination to the physical integrity through behavior control measures like a bonus. It is not compatible with the principle of voluntariness if the consent to vaccination is linked to the granting of certain advantages (Art. 7 Para. 4 GDPR). In addition, employees who cannot be vaccinated at all due to limited vaccination capacities and thus cannot receive the bonus payments promised by the employer could invoke the violation of the labor law principle of equal treatment from Article 3 (1) of the Basic Law. In addition, it must be taken into account that the exclusion of employees from the premium payment who cannot vaccinate for health reasons could mean that they are discriminated against on the basis of their disability.
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