Vaccination status query and updated COVID19 workplace regulations

Agreement on limited vaccination status query

It has now been announced that the governing parties of the CDU/CSU and the SPD reached an agreement yesterday evening on the much discussed issue of vaccination status enquiries. As part of the amendment to the German Infection Protection Act, employers will now be entitled to demand proof of vaccination or recovery status from employees if and to the extent that this is necessary to prevent the spread of the coronavirus disease. However, this is only intended to cover the health, care and education sectors to protect vulnerable groups as well as at-risk facilities where large numbers of people are in close quarters. The introduction of a general right to information in the economy, as demanded by employers' associations, seems to be off the table. The amendment is expected to be discussed in the health committee of the Bundestag as early as today, Friday, 3 September 2021, and to be passed in the Bundestag next week.

Adaptation of the SARS-CoV-2 Occupational Health and Safety Regulation

The SARS-CoV-2 Occupational Health and Safety Regulation, which provides for additional and temporary occupational health and safety measures for Corona prevention in the workplace, has been adapted to the epidemic situation and extended until 24 November 2021. From 10 September 2021, employers are obliged to release employees to take advantage of vaccination offers and to inform them about the risks of a COVID-19 disease and existing possibilities of vaccination. Employers will also be more involved in carrying out vaccinations at work.

Occupational hygiene concepts and the obligation to offer tests

The Corona Occupational Health and Safety Regulation stipulates that occupational hygiene concepts must be drawn up, updated and implemented. In addition, the hygiene concepts must be made available to employees in a suitable manner. If other measures do not offer sufficient protection, employers must at least provide medical face masks. The obligation to offer tests, according to which employers must offer their employees who do not work exclusively in a home office a Corona test twice a week, also remains unchanged. Proof of the procurement of the corresponding tests must now be kept until 24 November 2021.

No right to inquiry on vaccination status under Occupational Health and Safety Regulation

The vaccination or recovery status of employees is also important when drawing up company hygiene concepts. The explanatory memorandum to the last version of the Covid-19 Occupational Health and Safety Regulation already stated that the obligation to offer tests to employees who are fully vaccinated or recovered could be waived if employers have proof of this. However, the explanatory memorandum also made it clear that the regulation did not create a right for employers to be informed about the vaccination or recovery status.

Despite a proposal by Health Minister Jens Spahn to introduce a legal basis for the collection of vaccination status, this has not changed with the new version of the Covid-19 Occupational Health and Safety Regulation. Section 2 (1) now explicitly states that employers may take into account the vaccination or recovery status of employees known to them when determining and implementing occupational infection control measures. However, there is still no right to information with regard to the vaccination or recovery status.

Vaccination support obligation

Section 5 of the Covid-19 Occupational Health and Safety Regulation has been added, which provides for greater involvement of employers in the vaccination process. The regulation obliges employers to allow employees to be vaccinated against the coronavirus during working hours. This means that employees must be released from work to attend vaccination appointments during working hours. The wording of the regulation leaves open whether this should be paid or unpaid time off. However, there are indications to assume that employees are obliged to take time off with continued payment. In view of the fact that employers still do not have a general right to be informed about the vaccination status of their employees, this harbours potential for conflict. It is not possible to check whether employees have actually been vaccinated during a leave of absence. In addition, employers continue to bear the costs for the obligation to offer tests, which is extended without a corresponding right to information.

The amended Covid-19 Occupational Health and Safety Ordinance also provides for an obligation on the part of employers to provide organisational and personnel support to company doctors in carrying out protective vaccinations against the corona virus in the company. In addition, employees must be informed about the health risks of coronavirus infection and the possibility of vaccination as part of their occupational health and safety training.

Conclusion

The new Covid-19 Occupational Health and Safety Regulation places greater obligations on employers, especially with regard to vaccinations in the workplace. With the agreement reached by the government factions on the possibility to request vaccination status only for certain sectors, a general right to information for employers seems to be off the table. For large parts of employers, this does unfortunately not provide for the required legal certainty in dealing with the coronavirus in the context of employment.