Already vaccinated? - what questions can employers ask?

Which employers can inquire about the vaccination status of their employees and under which circumstances? The federal legislature did not adequately answer this question in Section 28a (3) of the Infection Protection Act (IfSG). What is certain is that employers are now allowed to inquire about the vaccination status of their employees at least in care and nursing facilities (Section 36 (1) and (2) IfSG). However, this regulation is only intended to apply for a limited period of time.

The regulation in the health sector has been different for some time

It is nothing new that healthcare employers can check vaccination status. Section 23a IfSG came into force in 2015. According to this regulation, employers in this area can request and process personal data from employees about their vaccination status in order to decide on the establishment of an employment relationship or the type of employment. The “pre-corona time” regulations ensured that employers could process safe health data including vaccination status. The aim was to ensure preventive measures in medical facilities and to avoid infections in patients.

At the beginning of the vaccination campaign, the question arose as to whether employers in other industries are now also allowed to query the vaccination status of employees. The background to this is that the employer could adapt certain work structures (e.g. to enable the unvaccinated to work from home to a greater extent) in order to guarantee the best possible health protection for the employees.

First expansions of the employer's right to ask questions regarding the COVID-19 vaccination status

The Union and the SPD have now agreed on September 7th, 2021 that employers in care facilities (e.g. in daycare centers and schools) and collective accommodation may ask their employees about the vaccination or convalescence status.

Section 28a IfSG has now been changed accordingly. In a new paragraph 3 it says: "If the German Bundestag has determined an epidemic situation of national scope according to § 5 paragraph 1 sentence 1 and insofar as this is necessary to prevent the spread of the coronavirus disease-2019 (COVID-19), the employer may process personal data of an employee in the facilities and companies mentioned in paragraphs 1 and 2 about his vaccination and serostatus with regard to the Coronavirus-Disease-2019 (COVID-19) in order to establish an employment relationship or about the Deciding on the way of employment. In addition, the provisions of general data protection law apply."

Vaccination status in the company hygiene concept

The Corona Occupational Safety and Health Ordinance (ArbSchVO) has also been adapted. From September 7th, 2021, § 2, Paragraph 1 stipulates that "when determining and implementing the measures to protect against infection, the employer can take into account a known vaccination or recovery status of the employees." For example, employers can use the information on the vaccination status in their hygiene plan to only let vaccinated employees work the same shift.

Elimination of the entitlement to remuneration in the event of quarantine

Even if the legal basis regarding the right to ask questions has not yet been sufficiently clarified, unvaccinated workers could be exposed to a significant disadvantage in the future. For example, it is quite possible that employers in other industries will begin to encourage voluntary disclosure of the vaccination status by means of certain incentive systems.
However, the question of the elimination of the right to reimbursement in the event of a quarantine order according to Section 56 IfSG can also be an occasion to differentiate between vaccinated and unvaccinated people in the future. During an officially ordered quarantine, employees continued to receive their remuneration under certain conditions (Section 616 BGB) and the employer was able to assert a reimbursement claim against the respective federal state.

The new legal regulation does not differentiate according to the vaccination status. However, if the person concerned could have avoided the quarantine, the right to reimbursement is excluded according to Section 56 (1) sentence 4 IfSG. This includes observing travel warnings and vaccination if the federal state in question does not require quarantine for people who have been diagnosed and / or vaccinated. If these do not show any typical symptoms, there are no quarantine requirements for vaccinated people in Rhineland-Palatinate and Baden-Württemberg, for example. It follows that unvaccinated workers who were offered a vaccination could have prevented the quarantine order. Accordingly, the state reimbursement claim for unvaccinated persons will no longer apply in Baden-Württemberg from September 15, 2021. Rhineland-Palatinate, for example, will follow this example on October 1, 2021.