Employers and coronavirus: when can the vaccination status be queried?

Employers want it, Health Minister Spahn can imagine: A query of the employees whether they are vaccinated against Corona or not. But what about the legal situation?

In Germany, a good 70 percent of adults are now fully vaccinated against the coronavirus. However, most employers do not know how many employees in a company have had themselves vaccinated. The vaccination rate within the company would be an important factor when it comes to whether, for example, employees can go back to the office or whether the mask requirement can be relaxed. That is why some employers’ associations want companies to be able to query the corona vaccination status of their employees. Trade unions object and refer to data protection.

What is the legal situation like?

According to the data protection officer of North Rhine-Westphalia, Bettina Gayk, health data are “among the specially protected special types of personal data”. The processing of this data is fundamentally prohibited according to the EU General Data Protection Regulation. “The employer must neither ask nor know what illnesses an employee suffers from, nor whether he is vaccinated or not,” said Baden-Württemberg’s data protection officer, Stefan Brink, in the “Handelsblatt” newspaper.

What are the exceptions?

The Federal Data Protection Act allows exceptions within a narrow framework. Accordingly, health data may be requested under certain circumstances if this is necessary for the exercise of the profession. This is legally specified for health professions in Section 23a of the Infection Protection Act: There, clinics, for example, are expressly allowed to query the vaccination status of their employees if it is necessary to combat infectious diseases. In such professions, employees come into close contact with people who cannot effectively protect themselves from Corona, explains Brink.

In addition, there are corresponding examples in practice – such as restaurants that only allow vaccinated or convalescent people (2G rule). To take advantage of this regulation, employers must also ask their employees about their vaccination status.

What could an expansion of the disclosure requirement bring?

From the employer’s point of view, a further step towards more normalcy would be possible: If it is clear that all or many in the company are vaccinated, distance specifications or mask regulations could be omitted. The chief executive of the Federal Association of German Employers’ Associations, Steffen Kampeter, said it was not about abolishing health data protection. The sole purpose of querying the vaccination status is to ensure that all employees in the company can have an optimal workplace. He called on the Bundestag to create a corresponding “legal basis” for this.

Is there a new regulation in sight?

There is currently no evidence of this. Federal Labor Minister Hubertus Heil sees his cabinet colleague Jens Spahn at the train, who had shown himself to be open to enabling such a vaccination status query. Occupational safety does not give this because of the personal rights of the employees. He is now waiting first to see whether Spahn “has a specific legislative proposal,” said Heil im rbb info radio. In this context he mentioned the Infection Protection Act. It is still unclear whether there are plans to change the law on the subject of vaccination status inquiries.

What other plans does the federal government have for companies?

The Corona Health and Safety Ordinance, which will apply until September 10, is to be extended until the end of November. A cabinet decision on this is planned for tomorrow. Companies will therefore continue to have to set up and apply hygiene concepts in order to prevent the virus from spreading as much as possible, as the draft ordinance shows.

It is interesting to note that the ordinance expressly mentions that employers may in future also take into account the vaccination or convalescence status of employees, provided they are aware of it. It cannot be ruled out that this internally increases the pressure on employees to say for themselves whether they have been vaccinated or not, for example if this results in a relaxation of the mask or distance requirements in the workplace.

With the change in the regulation, employers would also have to explicitly allow corona vaccinations during working hours in the future. The willingness to vaccinate should also be promoted by addressing the employees and by an in-house information campaign.