Are companies allowed to ask their employees whether they are vaccinated?

In the opinion of employers, this is urgently necessary because companies can only provide the best possible protection against infection with this knowledge - for example when organizing conferences, operating elevators or designing hygiene concepts for canteens and material distribution points.

Corinna Budras

Business correspondent in Berlin.

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Dietrich Creutzburg

Business correspondent in Berlin.

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Christian Geinitz

Business correspondent in Berlin

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But this question is already causing tough conflicts - but not so much with data protection and labor lawyers.

From their point of view, a clear and uniform national regulation is not only possible, but also desirable.

Rather, the dispute ignites between the social partners, i.e. the trade unions and employers, and the campaigning governing parties.

"A no-go"

The German Federation of Trade Unions brought a sharp protest against employers' right to ask questions on Tuesday.

"The demand for self-disclosure about one's own vaccination status is a no-go," said DGB board member Anja Piel.

"Like all other employee health data, whether someone has been vaccinated is subject to data protection; employers are not interested in them."

It is not the employees who are responsible for health protection in the company, but the employers - who then have to change work and production processes. "Technical and organizational measures, such as enabling home office, have priority," said Piel. Vaccination is "not an instrument of occupational health and safety".

Labor Minister Hubertus Heil (SPD), who provided the occasion for the current controversy with his draft for a new Corona occupational health and safety ordinance, essentially represents this stance.

For months, labor lawyers have been demanding a legal basis for processing personal data on vaccination status.

Similar to restaurants, hotels and theaters, employers also have to meet high hygiene requirements during the Corona period and ensure the safety of their employees.

In addition, there was an early need to use bonuses to incentivize vaccination among the workforce.

Half-hearted salvation

Even at the beginning of the week, leading employer representatives had vehemently called for the right to ask questions to be anchored in a legally secure manner. "In order to get the pandemic completely under control, all areas of the economy must now be able to ask their employees about their vaccination status," warned the chief executive of the employers' association Südwestmetall, Peer-Michael Dick. The umbrella association Gesamtmetall classified Heil's draft in a statement as “completely unsuitable for practical use” and “pure waste”. This gives companies with a high vaccination rate the prospect of a relaxation of infection control measures. However, companies should not ask how high the vaccination quota is.

Heil has now met the need for legal security only half-heartedly.

Because in his draft he makes it clear on the one hand: "The employer's right to information about the vaccination or convalescence status of the employees does not result from this provision." the statutory ordinances of the federal states based on it ”.

"I tend increasingly to yes"

Politically, Heil is passing the question on to Health Minister Jens Spahn (CDU), who is responsible for the Infection Protection Act. On the RBB radio, Heil explained his point of view on Tuesday as follows: "The question of whether employers should be given the right to find out the vaccination status of their employees must be clarified by the Federal Minister of Health responsible for this with a clear legal proposal." but have doubts whether this is legally possible. The occupational safety does not give that.

However, Spahn has shown that he can imagine a right to information anchored in the Infection Protection Act. "I tend to be more and more yes," he said on Monday evening on ARD television and also illustrated the purpose of such a regulation: "If everyone in the open-plan office is vaccinated, I can deal with it differently than if 50 percent are not vaccinated." one of the DGB position, on the other hand, anonymous vaccination refusals could, in the extreme case, even ensure that the whole department has to go to the home office.

While the two responsible ministers have not yet completed the identification phase, the Federal Data Protection Commissioner Ulrich Kelber is quickly calling for a clear solution for all companies in Germany. In principle, he sees no problems in creating a legal basis for all professional groups. However, he insists that the right to information must be limited to combating the corona pandemic and not be anchored beyond that. He also pointed out that with the help of the Corona warning app it was possible to make the query privacy-friendly. They can provide information that an employee has been vaccinated, tested or recovered without the specific status having to be disclosed.

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