Corona pandemic: compulsory vaccination for teachers and educators – is that possible?

It is about the health protection of everyone, but also about the physical integrity of the individual: The debate about compulsory vaccination for professional groups moves in this area of ​​tension.

“Anyone who joins a group of vulnerable people by choosing a profession has a special job-related responsibility” – this is how the “Rheinische Post” quotes the human geneticist Wolfram Henn. And in this sense those who cannot be vaccinated against Covid-19 are vulnerable. So especially children under the age of twelve.

However, this does not automatically mean that compulsory vaccination for all members of these professional groups would be lawful. The legal tension is clear: on the one hand, there is health protection for everyone. Even those who cannot get themselves vaccinated. On the other hand, the compulsory vaccination represents an encroachment on the physical integrity of those who do not want to be vaccinated.

Whether a vaccination requirement would be legally permissible therefore depends on how it would be structured in the individual case. In any case, the hurdles are high.

State vaccination requirement or private?

First of all, one would have to distinguish whether it is a question of a state vaccination requirement or a private vaccination requirement. The latter would be the case, for example, if private employers required their employees to be vaccinated.

In the spring, some labor lawyers argued that such requests could be justified in exceptional cases. However, only if the employees concerned are in regular contact with groups of people who are particularly at risk. For example, residents of an old people’s home who have not yet had the opportunity to be vaccinated.

In the meantime, however, the vaccination campaign has progressed so far that this situation should only occur in theory. In addition, the current debate is not about old people’s homes, but about the protection of children of school and kindergarten age. One should also take into account that these unvaccinated children differ from unvaccinated seniors in one essential point: The course of the disease after a corona infection is generally less severe in children.

Compulsory vaccination by the state – constitutional?

If the obligation to vaccinate were ordered by the state, for example by law, a different test standard would apply: The state is the addressee of the fundamental rights and is therefore constitutionally obliged to comply with them. Interferences with fundamental rights are possible. However, this is only permitted if there is a good reason and the intervention is proportionate.

A law that interferes with fundamental rights without good reason or disproportionately would be unconstitutional. It is not easy to judge whether this would be the case with a state-ordered vaccination requirement for certain occupational groups. But you can “feel your way around” using other cases.

Measles vaccination is compulsory for certain groups

There has been a compulsory measles vaccination since March 2020: for children and carers in daycare centers and schools, for people who live in community facilities, and for certain medical staff. The obligation to have a measles vaccination is therefore linked to regular attendance in certain facilities.

The aim is to achieve better protection against measles infections even without a general vaccination requirement, ie “for everyone”. Because in the past few years there had been measles outbreaks in Germany again and again. The disease is very contagious and can have serious consequences.

From the point of view of critics, this measles vaccination obligation violates the German constitution, such as basic rights such as the physical integrity of children and parental rights. Several parents have therefore sued the Federal Constitutional Court. Their complaints have not yet been decided. Should Karlsruhe come to a judgment here, that would certainly be an indicator of the constitutional conformity of a corona vaccination requirement for certain professional groups.

The main difference, however, would be that the measles vaccination is also directed at children. They would not be affected by a corona vaccination because no vaccine has yet been approved for children. And if there were such a vaccine, there would be no reason to oblige teachers to vaccinate at all.

Basic judgment of the ECHR

In April of this year, the European Court of Human Rights (ECHR) ruled in a landmark ruling that extensive compulsory vaccination for children in the Czech Republic is compatible with the European Convention on Human Rights. Parents there have to have their children vaccinated against various diseases: for example against diphtheria, tetanus, whooping cough, polio, rubella, measles and mumps.

Parents who fail to do so risk a fine. Unvaccinated children are not admitted to kindergarten. Several children and adolescents as well as a father had complained against it before the ECHR. The plaintiffs base their complaints on the European Convention on Human Rights, more precisely on the right to respect for private and family life, on religious freedom and on the right to education. “If education is to be restricted because of public health, there must be good reasons for it,” said the plaintiff’s attorney at the hearing.

Nevertheless, the plaintiffs largely failed. “For the Court of Justice it is not disproportionate that a state demands this protective measure from its citizens by law and in the name of solidarity,” said ECHR spokesman Patrick Titiun at the time. In general, the states would have a wide range of decisions on this issue.

However, Strasbourg also stated that any sanctions should not be too severe. Fines should not be too high and the effects on the development of the children should also be considered if they are not admitted to kindergarten. A judgment with a signal effect.

Under international law, Germany is bound by the European Convention on Human Rights and its interpretation by the Court of Justice. Nevertheless: there is no automatism. And Karlsruhe could also apply a narrower standard and view the compulsory vaccination more critically.