No sector-wide right for employers to ask questions about vaccination and recovery status under the new regulations
Is an employer allowed to ask about the vaccination and recovery status of its employees? This has been a con-troversial topic since the beginning of the vaccination campaign. Whilst employers’ associations go to court over this, employee representatives and data protection-ists are critical of the issue. Now the German parliament and council have recently approved the proposed Draft law on the employer’s right to ask questions regarding the vaccination and recovery status of its employees proposed by the coalition factions CDU/CSU and SPD (see Bundestag document 19/32275 (advance copy), pg. 12). This grants employers in certain designated sectors a corresponding right to ask questions. Unfortunately, the aim pursued with the act, preventing a further out-break of Covid-19, can only be achieved to a lesser de-gree due to its very narrow scope. In order to come into effect, the act must still be executed by the Federal Pres-ident and subsequently published in the Federal Law Gazette (Bundesgesetzblatt). Both are expected to take place in the near future.
Content of the new regulation
At this time, it is already possible to request someone’s vaccination and recovery status as per section 23a sentence 1 German Prevention of Infection Law (Infektionsschutzgesetz, IfSG) in medical facilities in terms of section 23 (3) IfSG which includes hospitals and doctor’s offices. The act that is now getting off the ground envis-ages a change to section 36 (3) IfSG which will expand the employer’s right to request information at care facilities and shared accommodation (section 36 (1) and (2) IfSG), provided that there is an “epidemic situation at national level” and “to the extent this is required to pre-vent the spread of coronavirus (COVID-19)”. The right to information as per section 36 (3) IfSG will consequently apply, in particular, to childcare facilities and schools. The declared aim of this is to better protect the risk groups looked after in these facilities. The risks for em-ployees should also be reduced in that the information obtained through the right to information will be used as part of tailor-made personnel scheduling and hygiene concepts (Bundestag document 19/32275 (advance copy), pg. 29). This is in line with the latest amendments
The method expressly permitted by law, which is therefore legally secure for employers, to ask about their employees’ vaccination and recovery status for safety and prevention purposes will unfortunately continue to only be available to a few sectors. Outside of this area of application of the IfSG, it remains possible to process corresponding personal health information data on the basis of the employee’s express consent as per section 26 (3) sentence 2 German Federal Data Protection Act (BDSG) in conjunction with Article 9 General Data Protection Regulation (GDPR). In principle, data processing as per section 26 (3) BDSG can occur without the express consent of the employee. The employer, however, requires a legitimate interest in processing the data which overrides the confidentiality interests of the employee on a case-by-case basis. Looking at the justification for the new version of section 36 (3) IfSG, which leaves the occupational health & safety regulations unchanged (Bundestag document 19/32275 (advance copy), pg. 29), it can be argued in this respect that the employer is responsible for safeguarding health at work as effectively as possible (section 241 (2), 618 (1) German Civil Code (BGB) and sections 3 to 5 German Occupational Health & Safety Act (ArbSchG)). In addition, employees are also obligated by law to cooperate in this context (sections 15 and 16 ArbSchG). Furthermore, an overriding interest of the employer in obtaining information may be assumed if options to deploy staff need to be clarified between the customer and contracting parties when the 2G rule (vaccinated or recovered) applies within your premises. In the meantime, the admissibility of such data processing is decided on a case-by-case basis and is therefore risky. It may be practical to conclude a Works Agreement which regulates the right to ask questions about vaccination and recovery status and further details about data processing (see section 26 (4) BDSG).
As a result, outside of the care and medical sectors, employers are advised to persuade their employees to provide information about their vaccination and recovery status on the basis of their voluntary consent or a Works Agreement. Whether an overriding legitimate interest in data processing is sufficient to go against the will of the employee in particular hazardous situations can only be decided on a case-by-case basis. The hurdles for this will continue to increase in light of the new version of section 36 (3) IfSG. The legislature has, in any case, wasted the opportunity to legally establish a sector-wide right to ask questions, thereby achieving a legally certain and thus practical regulation for all employers.
Autor: Dr. Alberto Povedano Peramato