In Germany, employers are obliged to take all necessary measures, including those to protect against infection (such as offering working from home, increased hygiene protections, social distancing and behavior) and offering voluntary company vaccination programs, in order to protect the health and safety of the workers in the company and to fulfil their obligations under occupational health and safety law. The newly developed vaccines are offering some hope in turning the tide in the fight against COVID-19. The Federal Labor Court (Bundesarbeitsgericht – BAG) had already provided guidance to employers on their obligations and liability in connection with employer-initiated vaccinations prior to the COVID-19 pandemic (BAG, 21.12.2017 – 8 AZR 853/16). These principles will take on considerable significance in the current situation should the new COVID-19 vaccines be available to company doctors.

Facts of the case

The plaintiff in the case sought compensation for non-material and material damages arising following a flu vaccination. The plaintiff was employed by the defendant employer as a controlling employee and the defendant and the freelance company doctor offered flu vaccinations to employees free of charge. The flu vaccinations took place during the lunch break and were carried out by the company doctor. A vaccination was administered to the plaintiff without any treatment errors, and the costs were covered by the defendant. The plaintiff claimed that due to the vaccination, she had suffered ongoing consequential damages and diseases such as severe pain with considerable restriction of movement of the cervical spine, which had resulted in her no longer being able to work. The plaintiff claimed that the defendant was liable for these damages because it had permitted the vaccination in the workplace without first informing the plaintiff about the possible risks and consequential effects of the vaccination. The claim was unsuccessful.

Decision

The BAG rejected the appeal. The court ruled that the defendant had breached neither its obligations under a contract regarding the treatment provided nor under the employment relationship with the plaintiff.

A contract in relation to the treatment provided had not been concluded with the defendant, but only with the company doctor. Neither the assumption of costs by the defendant, nor the appointment of the company doctor lead to the assumption that the work was performed as part of the employment relationship with the employer. The defendant was therefore not obligated to inform the employee about the circumstances essential for the consent to the vaccination. In addition, a flu vaccination was a measure to protect the individual‘s health, which the defendant was not obliged to provide and which also had no other connection with the plaintiff’s work performance. The plaintiff herself was primarily responsible for this area of her private life.

The BAG further stated that a breach of duties arising from the employment contract was also out of the question. The employer had no duty to provide information regarding the risks of a flu vaccination, even if the employer had provided the opportunity to take up the vaccination by the company doctor. It is true that the employer created a potential cause of danger by enabling his employees, and thus also the plaintiff, to be vaccinated against influenza by the company doctor in his company. The parties could not rule out that risks to the health of the employees associated with the flu vaccination would materialize. On the basis of this, however, the employer is only obliged properly to select the person performing the vaccination. There are no further obligations. In particular, the employer is not obligated to supervise the company physician in the execution of the flu vaccination.

Vaccination is a private matter

Compulsory vaccination represents a considerable encroachment on the fundamental right to physical integrity. There is currently no specific authorization for mandatory COVID-19 vaccinations. Theoretically, however, this could be introduced in the form of an amendment to the law, analogous to the compulsory measles vaccination that has been in place since March 1, 2020, or issued in the form of a legal ordinance in accordance with Section 20 (6) of the German Infection Protection Act (Infektionsschutzgesetz – IfSG). In line with previous case law of German social courts (cf. BSG, 31.01.1974 – 2 RU 277/73), the BAG states that measures to maintain or restore health are to be assigned to the sphere of private life, even if they serve to maintain the workforce. Therefore, vaccination remains a private matter. Employees who do not have themselves vaccinated are in principle not threatened with any consequences under labor law. The employer remains obligated to employ them. He cannot sanction his unvaccinated employees by, for example, refusing them access to the cafeteria, as this would contradict the prohibition of measures under Section 612a of the German Civil Code (BGB). It can be assumed that the labor courts will also adopt these principles as a basis in the current COVID-19 pandemic.

Job-related vaccinations

Employers should note however, that the above decision regarding the flu vaccination cannot be applied to job-related vaccinations. Employees may well be required to provide evidence of adequate vaccination protection due to their specific job and function. This applies, for example, to measles vaccination protection in accordance with Section 20 (8) IfSG for activities in health care and community facilities, where the health authorities may issue activity bans if necessary. It is true that “compulsory vaccination” of employees is not an option. However, repeated refusal to provide proof of vaccination may justify termination of the employee’s employment for personal reasons.

Liability risk

Where an employer is held to have violated its obligations under labor, health and infection protection law, it may, in principle, be liable for damages. In particular, if the employer urgently recommends that the employees take up a vaccination and takes the initiative and significantly promotes the implementation of a vaccination program, there could be potential claims for an occupational accident. However, the significance of any such claims for damages due to breaches of obligations under Section 618 BGB is severely limited. This is because potential claims are generally classified under statutory accident insurance as occupational accidents or occupational diseases within the meaning of Section 8f. of the German Social Code VII (SGB VII) and so covered by the accident insurance.

Conversely, tortious liability on the part of the employer cannot be ruled out if it can be shown that the employer’s reprehensible and causal misconduct results in damage to property or physical injury. This is the case, for example, where under qualified personnel are selected  or other organizational, factual or legal breaches of duty can be attributed to the employer or its executives. In order to establish liability, it is particularly important to determine whether a contract regarding the treatment was concluded between the employee and the employer in the specific circumstances and whether there was an obligation on the employee to participate.

Conclusion

In contrast to the flu vaccine, there is a lack of practical experience with COVID-19 vaccinations over a significant period of time. At present, there are no reliable results as to whether the vaccines available on the market also lead to so-called “sterile immunity”, with which the vaccinated person no longer poses a danger to his environment. Regardless of this, it is in the employer’s interest to maintain the employees’ ability to work. In accordance with the case law of the BAG and taking into account the evaluations of state institutions, such as the recommendations of the German Standing Committee on Vaccination (STIKO), there are no compelling arguments against employers allowing vaccinations on a voluntary basis in their company in order to maintain the capacity of their employees to work.

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