Unvaccinated people could soon face dismissal in an emergency.
(Photo: imago images / Westend61)
Dusseldorf In Germany, a general compulsory vaccination is approaching. At the crisis summit on Thursday, the federal and state governments promised such a measure for February. The ethics council should work out a recommendation by the end of the year, after which the Bundestag will make a decision. But many questions are already being asked. One of them: Does a compulsory vaccination automatically also apply at work? Labor law expert Wolfgang Lipinski assumes that it is.
Of course, it depends on the specific wording of the legal text. Lipinski estimates, however, that a mandatory vaccination law will make it more difficult for employers to continue to employ people who have not been vaccinated. What employees and employers can expect based on the current state of knowledge:
Do employees have to expect loss of earnings if they are not vaccinated despite being vaccinated?
“In labor law, the principle applies: without work, no wages,” explains Lipinski. In other words, if an employee is unable to do his or her job because he is still unvaccinated despite being required to be vaccinated, the employer does not have to pay for this time.
The situation is different if it is possible to work from the home office. “Then of course the employer would have to pay for the work performed,” said Lipinski. The specific legal text will show whether this is legally possible.
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Can unvaccinated people lose their jobs?
According to Lipinski, that is also possible. “If someone does not get vaccinated despite the offers, there is a clear breach of duty in the case of a general obligation to vaccinate.” If the work cannot be done in any other way than on site, those affected could first be warned. “If nothing changes, an unvaccinated employee is threatened with dismissal,” said Lipinski.
The Munich labor lawyer is a partner at Advant Beiten.
(Photo: ADVANT Beiten)
The same applies here: If you can work from home, you probably don’t have to expect such tough measures. However, sanctions for those who refuse to be vaccinated are likely to be defined in the law, such as fines or other penalties. “These are to be viewed separately from labor law,” explains Lipinski.
What happens if employers continue to employ unvaccinated people?
If they can work from home, probably nothing. Otherwise, however, this procedure is legally sensitive, says Lipinski. Because: “Every employer has a duty of care towards his employees.” Anyone who continues to employ unvaccinated employees on site violates this duty of care in the event of a general vaccination requirement.
From Lipinski’s point of view, a compulsory vaccination law should de facto make it impossible for employers to continue working for unvaccinated people. “Anyone who opposes this must probably expect fines or other sanctions.”
Are lawsuits from employees to be expected?
Labor lawsuits against the compulsory vaccination are considered likely. In a Yougov survey by the job platform Indeed, 46 percent of all unvaccinated people said that they would examine legal action against their own employer if they had to be vaccinated for work. 2000 employees were questioned, 246 of them unvaccinated. Courts must decide on an individual basis whether these lawsuits are successful.
The Federal Constitutional Court had already rejected two urgent applications against the measles vaccination requirement in May 2020. The measles protection law obliges employees of medical practices, hospitals, schools and daycare centers to demonstrate measles immunity if they were born after 1970.
At that time the legislature decided that the right of the population to protection against infection outweighs the right of every individual to physical integrity. One could argue in a similar direction with the compulsory vaccination against the coronavirus. “However, the measles vaccination only applies to certain occupational groups and is not a general vaccination requirement,” Lipinski restricts.
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