Vaccination cannot simply be Ordered

Cologne lawyer Christian Solmecke answers questions from Peter Niggl

During the course of this year, the disputes that revolve around the topic of vaccinations will certainly escalate. This will also lead to complicated situations in the security industry. Private security service providers in particular are usually servants of many masters.

SECURITY insight: How should or must a security contractor react if a customer wants to have exclusively vaccinated employees deployed, for example in soccer stadiums?

Christian Solmecke: Since the contractual relationship between the security company and its customer, e.g., a stadium operator, is of private-law nature, the customer has the right to determine on the basis of private autonomy, that only vaccinated employees of the security company may be deployed.

For the security company, which is dependent on the orders of its customers, the situation is then naturally difficult. As an employer, it cannot simply order its staff to get vaccinated. There would have to be a legal basis for this. If the security company requires its employees to be vaccinated, it cannot simply invoke its right to issue instructions as an employer.

The security company should definitely enter into negotiations with its customers and point out that, as an employer, it cannot simply order its staff to be vaccinated. The customer will have to acknowledge this. After all, he is also dependent on the services of the security company.

The German Federal Police governs the duty performance of aviation security assistants. Could the German Federal Police insist on the deployment of vaccinated personnel only? 

On the one hand, the Federal Police concludes contracts under private law with the aviation security companies it commissions. Due to its contractual freedom, it can make it a condition in the contracts that the aviation security assistants employed by the aviation security companies must be vaccinated.

However, as a federal authority, the Federal Police is also compelled to uphold fundamental rights. It must be taken into account here that the aforementioned contractual condition would mean a considerable encroachment on the freedom to engage in an occupation by the contracted aviation security companies as well as on the fundamental right to physical integrity and the general freedom of action of the aviation security assistants. In my view, there would have to be a legal basis for such an encroachment in any case.

Other players in this round are the airlines. Can they insist on compliance with respective requirements? (The Australian airline Qantas, for example, has already announced that it will only carry vaccinated passengers in the future.)

In principle, private companies, such as airlines, can invoke their domiciliary rights under German law if they wish to allow only vaccinated passengers on board. Based on the principle of private autonomy in civil law, they are free to decide whom they allow to enter and under what conditions, and whom they serve. Accordingly, they can also require the presentation of a vaccination certificate and stipulate that only persons who have already been vaccinated are admitted.

German civil law also contains the General Equal Treatment Act, which prohibits discrimination in civil law transactions. According to this, however, discrimination is only prohibited on certain grounds, such as race, ethnic origin or gender. In the case of airlines or other public transport, however, it must also be taken into account that they have an obligation to carry all persons, including non-vaccinated persons.

In that case, alternative solutions must be found to protect other travelers from the risk of infection. Lufthansa, for example, has announced it would require passengers to show proof of vaccination or a negative corona test in the future.

How about the passengers themselves? Do they have the right to demand the best possible health and safety and to be checked only by personnel with the appropriate vaccination?

Here, too, the keyword is freedom of contract. Passengers are free to agree to the airline's conditions of carriage and to take the flight or not. If they agree to the respective conditions of carriage, they cannot simply make further demands.

Work performance of local and long-distance public transport staff may also require very close contact with passengers. What are the rights of the employer respectively of the customer/passenger?

Here the same applies as already stated before. The employer may not simply order a vaccination obligation of the personnel without a legal basis and such a basis does not exist as of this date. Passengers on local and long-distance public transport also agree to the conditions of carriage applicable there and, beyond that, simply cannot demand to be checked only by vaccinated personnel.

If compulsory vaccination could not be implemented because it is legally unenforceable or politically undesirable, the question arises as to what other incentives could be created to enforce “voluntary vaccination” that would not only be legitimate but also legally correct. Where would the lines be drawn in this case?

One possibility for creating incentives with regard to employment relationships that is being discussed is whether employees should be granted vaccination premiums if they are vaccinated. This would in principle be permissible under German labor law.

Of course, industrial peace must be maintained at the same time. The provision of vaccination premiums must not lead to a division in the workforce, so that employees, who refuse vaccination, feel that they have disadvantages.

This naturally brings up the question of what countermeasures may be taken by companies. Are dismissals of vaccination refusers conceivable as a last resort to maintain business operations? When is this a given?

In the absence of a legal obligation to vaccinate, termination of the employment relationship with vaccination refusers would currently only be conceivable as a last resort. Personal dismissal could be considered due to the loss of the employee's suitability.

For this to be the case, however, the health of the employee and customers of the vaccination refuser would have to be at particular risk. In the case of an unvaccinated employee, this is most likely to be the case in nursing or other medical professions. Prior to this, it would also have to be checked whether there are other less hazardous employment opportunities within the company for the unvaccinated employee.

Could a refusal to vaccinate be interpreted and sanctioned as a disturbance of industrial peace in line with the Works Constitution Act?

There is no legal definition of what constitutes a breach of industrial peace. An assessment must always be made on a case-by-case basis. However, typical cases of disturbance of industrial peace are insults, physical attacks or discrimination by employees, who may then be given a warning.

If someone does not want to be vaccinated for reasons of conscience or health precaution, I think it is absurd to think about a disturbance of industrial peace here, even if this causes annoyance among colleagues.

After all, the unvaccinated person may have understandable reasons for his decision. In general, he is not deliberately disturbing the peace at work.