Inquiry of the Corona vaccination status by the employer

In times of the Corona pandemic, it has become commonplace for individuals to be forced into quarantine. Even if these individuals are in good health, they are thus prevented from working. Where previously the state unconditionally covered the loss of wages of the affected employee, this will soon only be the case for vaccinated employees.

Find out how this can be implemented in practice and whether this means that employers are now allowed to ask about vaccination status here.

Previous regulation of continued payment of wages

The Infection Protection Act (IfSG) provides that, as a matter of principle, no one should suffer a loss of wages due to an officially ordered quarantine. If an employee is unable to attend work due to a quarantine order, he or she benefits from Section 56 I 1 IfSG. This standard entitles the person affected to monetary compensation.

In practice, this compensation is paid via the employer. The employer can then have the paid amount reimbursed by the authorities (§ 56 V 3, XII IfSG).

In the future exception for unvaccinated

The IfSG also provides that no compensation is paid to "anyone who could have avoided segregation by availing themselves of a vaccination [...] that was publicly recommended [...] in the area of the habitual residence of the person concerned" (Section 56 I 4 IfSG). This exception already exists in the law since summer 2020, but has not been applied so far due to the short availability of vaccinations.

In the meantime, however, the supply of vaccines has probably developed in such a way that this exception is applicable. After all, anyone who is able could have been vaccinated by now. The German states have therefore agreed that this exemption should apply throughout Germany from November 1, 2021. For those who cannot be vaccinated for health reasons, there will be back exemptions.

Employer's right to ask about vaccination status

For employers, this raises the purely practical question: How am I supposed to know whether the specific employee is entitled to monetary compensation from the authority? After all, the employer has an interest in this if he is the paying agent in the event of compensation.

In principle, there is no right to ask about vaccination status in the employment relationship. Exceptions to this are certain employment groups such as nurses or teachers and educators (§§ 23a, 36 para. 3 IfSG).

However, the Federal Ministry of Health considers the employer's request for information in such cases to be justified. The information about the relevant health data is necessary in this form for the processing and implementation of the employment relationship. In this case, the employer's interest outweighs the patient's right to privacy (Article 88 (1) of the GDPR, Section 26 (3) of the BDSG).

Accordingly, if an employee seeks compensation, he or she must also provide information about his or her vaccination status or inability to be vaccinated.

Attention: Quarantine is not equal to incapacity for work

Strictly separate the scenarios of an employee in quarantine and an employee who is ill (unable to work) in quarantine.

If an employee is incapacitated for work, he or she is in any case legally entitled to continued payment of wages in accordance with the Continuation of Remuneration Act (EFZG) for up to six weeks (Section 3 EFZG). This is paid by the employer.

If the employee is only in quarantine or asymptotically infected, he is entitled to the compensation explained above. Here it is again important whether the person has been vaccinated.

If the employee feigns incapacity to work in order to avoid a loss of pay, this constitutes a possible reason for termination without notice.

Right to home office as a solution?

However, the whole problem could be circumvented if it is possible for the employee to perform his or her work from the home office for the duration of the quarantine. If the IfSG still provided for this as a general entitlement of the employee until June 30, 2021, the "right to home office" currently no longer exists. The employer alone decides whether work can be performed in a home office. If there is no agreement between the employee and the employer in this regard, the above-mentioned rules apply.