Fighting the corona pandemic: is mandatory vaccination legally permissible?

Status: 11/16/2021 5:27 p.m.

The infections are increasing, the vaccination rate is still too low: This is why there is heated discussion about compulsory vaccination for certain professional groups or in certain facilities. But what is the legal framework?

By Claudia Kornmeier, ARD legal editor

It wasn’t that long ago that all children in Germany had to be vaccinated against smallpox in the first year after their birth. The compulsory smallpox vaccination introduced by the Reich Vaccination Act in 1874 continued to apply in the Federal Republic for a few decades and was only gradually abolished from the 1970s.

Example: The Measles Protection Act

A more recent example of compulsory vaccination in certain facilities: the Measles Protection Act. Since March 2020, a measles vaccination has been mandatory 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 linked to regular attendance in certain facilities, where the risk of infection is higher than elsewhere. The aim is to achieve better protection against measles infections even without a general vaccination requirement.

Because in the past few years there had been repeated outbreaks of measles in Germany. The disease is very contagious and can have serious consequences. Similar considerations for compulsory vaccination, which would only apply in certain facilities and not everywhere, are now also available for Corona.

Basis for compulsory vaccination

The measles vaccination was introduced by law. It is regulated in the Infection Protection Act. In addition, this law also allows other vaccination obligations to be introduced for “threatened parts of the population”, “if a communicable disease with clinically severe forms occurs and its epidemic spread is to be expected”.

This would be possible through an ordinance of the Federal Ministry of Health with the consent of the Federal Council. As long as the Federal Ministry of Health does not do this, the state governments should issue a corresponding vaccination requirement in their country. So far, no use has been made of this option.

Vaccination must be proportionate

Whether actually by regulation or at least by law – in any case, such a vaccination obligation would have to be proportionate. Because a compulsory vaccination is an interference with the basic right to physical integrity. A legitimate purpose would be to prevent the health system from becoming overloaded – a situation that is currently more real than it was a few months ago. But the protection of those who cannot be vaccinated for medical reasons, but who are threatened with serious disease, would also be a legitimate reason.

Because the state is obliged to protect life and physical integrity, which is also derived from the basic rights. A compulsory vaccination would also have to be suitable to achieve this purpose. According to the Robert Koch Institute, a vaccination protects against serious illness, but also against infecting others. Milder means such as a wide range of vaccinations, education about and advertising for vaccination would also have to be exhausted.

In the end it has to be weighed up: What is more important? The physical integrity of those who work or want to stay in certain facilities without vaccination, or the fundamental rights of those who depend on a functioning health system or who cannot be vaccinated themselves. It also plays a role whether and which exceptions there are from compulsory vaccination – for example for people who cannot be vaccinated for medical reasons.

Court decisions in favor of compulsory vaccination

In case of doubt, the courts will have to decide. A final decision by the Federal Constitutional Court on compulsory measles vaccination is still pending. Several parents had lodged constitutional complaints. The European Court of Human Rights, on the other hand, in the spring approved a very extensive compulsory vaccination for children in the Czech Republic against various diseases.

In Germany, too, there have already been decisions in favor of compulsory vaccinations: the Federal Administrative Court found them compatible with the Basic Law in 1959. In the decision, the court referred in particular to the experience in other countries where a scheduled vaccination against smallpox had led to its eradication.

Consequences for refusers

But what should happen if someone strictly refuses to be vaccinated even though he works in a vulnerable facility? In the case of measles vaccination, the health department can, in case of doubt, issue a ban on activities and access to the facilities concerned – but not for school-age children, as this would conflict with compulsory schooling. If in doubt, children cannot be looked after in a daycare center.

This can have consequences under labor law for people who work in these facilities. If they cannot be used in other areas that are not subject to measles vaccination, termination is also conceivable. In addition, fines according to the Infection Protection Act can be imposed on people who do not provide evidence of a vaccination, although they have to, and also for the management of the facility concerned. The Federal Ministry of Health speaks of possible fines of up to 2500 euros. A repeated fine is also possible.

A fine is also conceivable – but not a compulsory vaccination. In other words: if you absolutely do not want to be vaccinated, you will not be vaccinated either. In the case from the Czech Republic, the European Court of Human Rights ruled that the consequences must not be too severe – that is, no fines that are too high. And the consequences for children and their personal development should not be forgotten either.

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