No, at least according to the current legal situation. The right of the employer to issue directives is usually not a sufficient legal basis for such an instruction as long as there is no general legal obligation to get vaccinated or at least a corresponding obligation for certain occupational groups. On the one hand, the decision to get vaccinated or not is a private matter of the employee, which is not subject to the employer's right to issue directives. On the other hand, an instruction to get vaccinated would constitute an indirect infringement of important legal interests of the employee, such as his or her physical integrity. Generally, the employer's interests in having his employees vaccinated cannot outweigh this impairment. A respective vaccination clause via general terms and conditions in an employment contract would also be invalid for the same reasons, according to the prevailing opinion.

Exceptions to this principle are discussed in specific cases where vaccination is necessary for the employee to be able to fulfil his or her duties under the employment contract. This could be the case for occupations where employees necessarily and regularly come into (close) contact with persons belonging to the Covid-19 risk groups, for example in case of employees in hospitals and nursing homes. However, even in these cases, a corresponding obligation would only be conceivable if a vaccination also can be proven to prevent the vaccinated person from infecting other people or at least to significantly reduce the risk. So far, it has not yet been clarified whether or not the existing vaccines lead to such a "sterile immunity".

In principle, no. The employer needs a legal basis to be allowed to process personal data of his employees. This also and especially applies to information about the vaccination status, as this is a health-related information and thus belongs to the special categories of personal data. One such legal basis is the (voluntary) consent of the person concerned. However, it is highly controversial whether consent given by employees to the employer can be "voluntary" in the sense of data protection law due to the relationship of dependency. Therefore, employers should not rely on the employee’s consent as a legal basis. However, asking about vaccination status may be lawful if it is legally necessary for the employer to know about the vaccination status of his employees. It is argued that this is currently necessary for reasons of occupational health and safety in view of the pandemic situation. However, this is likely to depend on whether a vaccination also prevents infecting others.

An explicit legal permission to process personal data of a (future) employee on his/her vaccination status and immunity exists for medical and nursing institutions, which are legally obliged to prevent the spread of infectious diseases.

The first hurdle for employers is likely to be finding out whether an employee has been vaccinated or not (see above). However, if this information is available, various options are conceivable:

Exemption from work/refusal of salary payments

There are currently increasing reports in the media about employers who envisage to exempt employees refusing vaccination from work without paying them their salary. However, in the vast majority of cases, this is unlikely to be lawful, as employees are entitled to employment in accordance with their contract and, in addition, usually retain their entitlement to remuneration even in the case of a unilateral exemption from work.

Warning

A warning cannot be issued because the vaccination behaviour is usually outside the scope of the employee's duties under the employment contract.

Termination

In the (exceptional) cases outlined above, where vaccination is a necessary occupational requirement, termination of a vaccination refuser for reasons related to the person of the employee may be permissible as a last resort. However, this is only permissible if the employer cannot employ the non-vaccinated employee, even after a relocation.

The possibility of a socalled “pressure” termination is also being discussed, for example, if patients or relatives demand to only be treated and cared for by vaccinated staff. However, pressured terminations are subject to strict conditions and therefor their effectiveness is often questionable.

Incentives

Incentives including financial ones for employees to be vaccinated are considered permissible. This differentiation between vaccinated and non-vaccinated employees can be justified, in particular under occupational health and safety aspects, if the vaccination leads to "sterile immunity" (see above). When designing such incentive systems, the general principle of equal treatment under employment law and, possibly, co-determination rights of the works council must be observed.

Spatial separation

Another discussed option in connection with vaccinated and unvaccinated employees is the spatial separation of both groups, especially in social areas such as the canteen. Such a separation may be appropriate in view of occupational safety and health aspects if the protection of risk groups in particular can be increased as a result. If the premises constitute a social facility in the sense of works constitution law (e.g. the canteen), the employer must consider the co-determination rights of the works council when regulating access restrictions.

In the vast majority of professions, no. This question is expected to become relevant in a few months when vaccines against Covid-19 are available in sufficient quantities and vaccination is no longer centrally controlled as it is during the current pandemic situation. Only in certain fields of activity where there is a greater risk of infection than in others, for example in hospitals, employers could be obliged to bear the costs of a Covid-19 vaccination for their employees as part of occupational health care.

As a rule, employers do not have to give employees paid time off from work for vaccination. This may be different in the exceptional case described above or if the employer voluntarily sets up a vaccination programme for its employees, as is often the case at present with the flu vaccination. In such cases, the employee is usually entitled to paid time off for each vaccination appointment being necessary for immunisation.