Debate about compulsory vaccination: what is legally allowed?

Is it legally permissible to increase the willingness to vaccinate through disadvantages for non-vaccinated people? Is it even conceivable that a vaccination would be mandatory?

At the moment, those who have been vaccinated, those who have recovered and those who have been tested are largely equal. In any case, the differences are hardly noticeable in everyday life. But they already exist on the return trip from a high incidence area: Vaccinated and convalescent people do not have to be in quarantine. All others have to isolate themselves first and can only “free themselves” after five days.

If the numbers rise again drastically in autumn, stricter contact restrictions will apply again in the federal states. If, for example, only two households are allowed to meet, the vaccinated people do not count under the current legal situation. A noticeable disadvantage for everyone who does not yet have vaccination protection. Politicians are also calling for certain events to be attended only by those who have recovered or who have been vaccinated. A negative test should then no longer be enough.

Is unequal treatment compatible with the Basic Law?

The first impulse from many: This is a discrimination against non-vaccinated people. Article 3 of the Basic Law says: “All people are equal before the law”. However, this statement does not prohibit the state from making differences where this is objectively justified. In any case, the following applies to all people: fundamental rights may only be restricted by each individual if there is a good reason, i.e. a legitimate goal, for it. And if there is no more lenient means of achieving this goal. The goal of protecting the health and life of others is unquestionably legitimate. The state is even obliged to protect its citizens. Most of the corona measures restricting fundamental rights therefore withstood judicial reviews.

What danger does vaccinated people pose?

In order to answer the question of whether people who have not been vaccinated may be restricted more than those who have been vaccinated, it is therefore essential: do they pose a lower risk? It is clear that vaccination does not offer 100 percent protection either, and the risk that people who have been vaccinated will pass on the virus is not zero. But the Robert Koch Institute writes: “The risk that a person will become PCR-positive despite a complete vaccination is already low.” In addition, the RKI refers to observational studies that at least currently suggest that vaccination significantly reduces the risk of transmission of the coronavirus.

If so, it would no longer be justified to further restrict the basic rights of those who have been vaccinated and those who have recovered. In other words: the risk from the non-vaccinated is much higher. Incidentally, also because you know that the rapid tests by no means offer the same level of security. According to current knowledge, unequal treatment should therefore be justified. However, it is of course possible that this will change again as a result of new virus mutations.

The restriction of the basic rights of non-vaccinated persons must of course always be examined separately. They are only legally permissible if this is necessary to protect the life and health of others. This depends on various variables such as the current incidence number, the death and hospitalization rates or the R-factor. The argument that the unequal treatment would involve compulsory vaccination through the back door is somewhat wrong. Everyone could still choose not to get vaccinated. Even without vaccination, his basic rights should only be restricted if this is absolutely necessary.

What about private providers who insist on vaccination?

In addition, private providers such as restaurateurs or hairdressers can basically freely decide who they want as customers and who not. The General Equal Treatment Act (AGG), which prohibits discrimination based on gender, ethnic origin or age, for example, offers limits. However, different treatment based on the vaccination status is not objectionable.

Compulsory vaccination for certain professional groups

A compulsory vaccination for certain occupational groups, as it is now being introduced in France, for example, is also constantly under discussion. Such a statutory vaccination requirement would be a serious encroachment on the fundamental rights of those who do not want to be vaccinated. It would only come into question if, without it, the danger to the life and health of certain groups such as patients in hospitals, visitors to nursing homes or children in kindergartens and schools could not be protected in any other way. However, it must also be taken into account that kindergarten or school children are less likely to have severe courses of corona infections.

Since 2020 there has been an obligation in Germany for a measles vaccination for children and carers in daycare centers and schools. On the other hand, some parents have filed a constitutional complaint with the Federal Constitutional Court that has not yet been decided. A judgment from Karlsruhe could also provide initial clues in the matter of Corona, but there are also serious differences between Covid-19 and measles.

General compulsory vaccination

It would be particularly difficult for the state to order a general compulsory vaccination. However, such a compulsory vaccination would be even more difficult to justify for everyone. Only if the life and health of the population could not be protected in any other way and severe processes for many people could not be prevented in any other way, one could probably consider such a step.