A general obligation to vaccinate against COVID-19 is being debated all over Germany, but it has already been set up in parts of the working world. As early as December 10, 2021, the legislature introduced the so-called facility-based vaccination obligation for employees in health and care professions through Section 20a of the Infection Protection Act (IfSG). It must be assumed that more companies and employees outside the original healthcare and nursing professions are already subject to this obligation than might be assumed at first glance.
Employees working in nursing, care and healthcare facilities (cf. catalog pursuant to Section 20a (1) IfSG) must provide proof of immunity to COVID-19 by the end of March 15, 2022. If proof is not submitted within this period, the responsible public health office must be notified, which will then decide on a ban on employment and work of the persons concerned. Employees who start working for the first time after March 16, 2022, must submit such proof before they start working, otherwise they will not be allowed to start working at all.
As a result of such ban, the employees' entitlement to wages will generally lapse if there is no other employment opportunity (principle: "No work, no pay"). A case of default in acceptance is unlikely as the impediment to performance lies in the sphere of the employee. A lack of proof may also give rise to individual personnel measures ranging from a warning to termination (for personal reasons and/or for reasons of conduct), which must be examined in each individual case.
Does this really only affect healthcare facility employees?
Probably not, because the legislative intent and the wording of § 20a IfSG cover a much wider group of people:
In principle, persons are required to provide the corresponding proof of immunity against COVID-19 if they are active in facilities or companies such as hospitals, day clinics, medical practices, rehabilitation facilities, and many more. But does this only apply to employees of the facilities themselves or also to employees of third-party companies, such as pharmaceutical sales representatives or craftsmen or technicians who visit these facilities to perform their services?
According to the explanatory memorandum to the law, the classification of activities to ensure protection against infection is to be based solely on a temporal element and not on the type of employment. Conversely, this means that only those persons and occupational groups do not have to provide proof who are only temporarily employed (for a few minutes at most) in the facilities or companies mentioned.
The German Federal Ministry of Health considers this characteristic to be fulfilled, for example, in the case of mail carriers or parcel delivery personnel. However, (external) craftsmen, in particular health craftsmen and medical chiropodists, are to be subject to the verification requirement.This sweeping distinction already shows that a reliable and practicable demarcation solely on the basis of the time factor is likely to be difficult in the context of an ex ante consideration; after all, it is not always possible to foresee in advance how long an assignment will last at the customer's site.
Consequences for third-party companies and their employees
Based on the broad wording of the law as well as the explanatory memorandum, it will have to be stated that the provision of proof of immunity against COVID-19 not only affects typical companies in the healthcare and nursing sector such as hospitals and doctors' practices, but also applies to all medical device manufacturers, medical technology companies, pharmaceutical manufacturers and other service companies (e.g. kitchen, cleaning, craftsmen, etc.), provided that they send employees to covered facilities.
It is questionable how the legal consequences of § 20a IfSG will affect these companies. There is a particularly intense debate about the extent to which these employees fall under the group of employees who are already working before March 15, 2022 (old employees) or under the employees who will (newly) be working from March 16, 2022 (new employees). Can it really matter here whether a person has at some point previously been on site at such a facility - even if only for a few minutes? This delimitation criterion is likely to prove unsuitable in practice.
The fact that this classification is nevertheless of considerable importance is already shown by the different legal consequences. For existing employees, the only obligation would be to notify the health authorities if no evidence is provided, whereas new employees would automatically be banned from working without such evidence. If the relevant evidence is not provided, the labor law issues already mentioned arise, such as continued payment of wages, transfer and sanctions ranging from a warning to termination.
In addition, it must be determined who is responsible for checking the evidence in such a constellation (facility/company in the healthcare and nursing sector or the third-party company as the contractual employer) and to what extent data can be exchanged between the companies before the end of March 15, 2022.
In practice, this also raises questions of data protection law: While the targeted questioning of employers about the immunity status of employees was previously not permissible according to almost unanimous opinion, this will now have to be reassessed - depending on the individual case - in view of the facility-based vaccination requirement:
From March 15, 2022, employers will sometimes have no choice but to take immunity status into account when planning their employees' assignments to clients in the healthcare sector. In principle, employees may then also be obliged to provide information based on their contractual loyalty obligations.
Justification of the processing of the health data under data protection law is conceivable via Article 9 (2) (b) of the GDPR or Section 26 (3) of the BDSG. However, the balancing of interests required here gives rise to uncertainties. For example, is it more reasonable for the employer to redesign its shift/assignment schedules (to the extent possible) than for the individual employees to present their proof of immunity? There are likely to be compelling arguments for both sides, depending on the individual case.
The German Federal Ministry of Health assumes that a processing authorization can already follow directly from Section 28b (3) IfSG (i.e., the authorization for 3G controls). It may be doubted whether this does not conflict with the strict purpose limitation within the scope of 28b (3) IfSG.
With these and other legal issues, the legislature has presented entire industries with a resource-intensive task without even explicitly addressing it.
Affected companies should therefore initiate the following measures:
- Checking whether employees are deployed in the healthcare facilities covered by Section 20a IfSG?
- If this is the case, it must be checked whether the employees deployed perform an activity that goes beyond a "very temporary" period, so that proof of immunity is required.
- Thereupon, the proof of immunity via vaccination or recovery of these employees must be checked by the company.
- In addition, contact should be made with the health care facility to reach agreement on further outreach and use of the data.
- For employees who do not submit proof of immunity, other deployment options should first be sought in compliance with the provisions of the employment contract before further steps under labor law are considered
It is conceivable that the legal obligations arising from Section 20a IfSG will adapt to developments in ongoing pandemic and that many of the issues raised here will be clarified by the passage of time, by renewed legislative initiatives or by the authorities simply "doing nothing". Very recently, the Bavarian Minister President announced that the regulation would de facto not be implemented for the time being, or only to a limited extent. For new employees, however, the ban on activities will apply regardless of the enforcement by the authorities. For the moment, therefore, companies that do not fall directly under the scope of § 20a IfSG are well advised to take precautions.