Editor in chief at IamExpat Media
With coronavirus vaccinations steadily being rolled out across the world (or very, very slowly, in Germany’s case), discussions about what kind of privileges vaccinated people will have are, understandably, beginning to surface. And we’re not just talking about restaurants, concerts and travel, but also about the workplace: will unvaccinated workers soon find themselves out of a job? Here’s an overview of the legal situation.
As long as vaccinations against COVID-19 remain voluntary - as the German federal government has insisted they will - employers cannot oblige their workers to get vaccinated per se. Accordingly, most employees should have no fear of losing their jobs if they do not get a vaccination (although there are some exceptions - see below).
Your employer has a so-called right of direction, according to which they can issue binding instructions at their own discretion. In addition, they have a duty of care towards their workers.
But this only means that the employer can insist on appropriate infection protection measures such as distance, hygiene rules, or an order to take sick leave and stay at home if employees are exhibiting symptoms of illness. Depending on the workplace, it may also be appropriate for regular rapid coronavirus testing to be carried out.
However, compulsory vaccination will in most cases be considered unreasonable, from a legal perspective - as the employee’s personal rights would prevail. In this context, laws governing data protection also play a role: if your employer cannot compel you to get vaccination, they are certainly not allowed to ask whether you have been vaccinated or not, or request to see a copy of your vaccination certificate.
On the other hand, they could offer incentives for employees to get vaccinated voluntarily - for instance a bonus for those who get the jab.
The situation is, however, different for employees in hospitals, old people’s homes and other workplaces where employees have a lot of contact with risk groups. According to Germany’s Infection Protection Act, these institutions are obliged to take all measures required by the state of medical science to avoid infections and the spread of pathogens.
Such measures could include not only mask requirements, rapid testing and hygiene measures, but also vaccines, which offer better protection.
Even in these cases, the company is not allowed to terminate an employee’s work contract simply if they refuse to get a vaccine. Rather, the employer must first try to transfer the unvaccinated employee to another vacant position in the company where vaccination protection is not absolutely necessary.
Dismissal is, however, conceivable if there are no alternative employment options for the unvaccinated employee and no particularities of the individual cases that exclude termination. The labour courts will still have to decide which exact requirements are to be placed on dismissals in such cases.
If you have lost your job recently, it may be possible to defend yourself against the termination before the labour courts. But you need to act quickly and contest the dismissal within three weeks of receiving your termination notice. Rather than returning to your old job, it may be possible for you to claim severance pay.