The fourth Corona wave is not only causing record incidences in more and more regions of Germany, but also the first bottlenecks in hospitals. It is not the first time that therefore it is discussed whether at least for occupations in the health and care range a Mandatory vaccination against the coronavirus is necessary. On the one hand, to protect employees – but also to prevent infections from being transmitted. A general obligation to vaccinate is also being discussed.
In the meantime not only a large majority of the Germans favors an occupation-related vaccination obligation. Almost two thirds are in favor of a general duty on the Corona vaccination, according to a survey conducted by the opinion research institute YouGov on behalf of the Deutsche Presse-Agentur. In it, 63 percent were in favor of obliging everyone in Germany to be immunized against the dangerous virus. Only 30 percent are against it, 7 percent made no statement.
For a long time, the German government had rejected a general obligation to vaccinate. Now the Bundestag is to decide on it in the coming weeks. According to the wishes of the probably future German Chancellor Olaf Scholz (SPD), it should come into force by the beginning of March at the latest.
The general vaccination requirement is much more difficult to enforce legally than the job-related one – especially since there is still no legal basis for it and vaccination represents an interference in the Physical integrity of a human being represents. So how could compulsory vaccination be implemented in Germany??
Mandatory vaccination: the basis would be the Infection Protection Act
Essential to this is the Infection Protection Act and the reforms it contains. But not, for example, those that were decided in the course of the Corona pandemic and came into force. But rather the changes that would result from the Measles Protection Act have emerged.
Accordingly, the Federal Ministry of Health, with the approval of the Bundesrat, can order "that threatened sections of the population participate in vaccinations or other Measures of specific prophylaxis have to participate, if a transmittable illness with clinically heavy progress forms occurs and with its epidemic spread is to be expected", unless a protective vaccination is medically contraindicated.
Vaccination duty against measles or Corona: Basic right would be restricted
In order to prevent the spread of communicable diseases, the law, known briefly as the IFG, provides for a restriction of the fundamental right to physical integrity (Art. 2 Abs. 2 sentence 1) before. In the controversial introduction of mandatory Measles vaccination for children this has already come to bear. Since children are particularly at risk from measles disease and contribute to the excessive spread of the disease, vaccination is considered a specific safety measure here.
The Compulsory vaccination Applies to all children over the age of one who attend a public daycare center or school. This also applies to day care for children. The duty also applies to adults who work in public institutions such as schools, hospitals or kindergartens. This also applies to volunteers, kitchen staff and interns. Who lives in a community accommodation, for example as an asylum seeker, must also prove the second vaccination.
Urgent applications against the measles protection law had the Federal Custody Court rejected. It can be amed that this regulation provides a high degree of legal certainty. Among the reasons it gave was that "vaccinations against measles (…) not only protect the individual against the disease, but at the same time prevent the further spread of the disease in the population (…)". In this way, vulnerable people who could not themselves be vaccinated could also be protected.
Legal experts: Mandatory vaccination against Corona would be possible
Based on this argumentation, compulsory vaccination in the event of a pandemic would be theoretically possible, according to legal experts. The Berlin state and constitutional law expert Ulrich Battis believes that compulsory vaccination would be a certain occupational groups even for undisputed among jurists. The problem is political implementation and control, the legal scholar from Berlin's Humbold University told RBB-Inforadio.
A Legally binding obligation to vaccinate must be proportionate and enforceable: "The second is certainly a problem in Germany at the moment, because politics itself is hesitant."Among other reasons, this is because compulsory vaccination is unpopular and people are afraid of resorting to the state's monopoly on the use of force. It is not primarily a question of law, but of the implementation of a right.
"One could introduce a vaccination obligation, not into the blue, but certainly for care professions. This is no longer a matter of dispute among legal experts," emphasized the constitutional law expert. Just as special requirements for nursing homes in the Corona pandemic were upheld by the courts, the same was true for mandatory vaccination of staff.
How could a vaccination obligation look concretely?
Compulsory vaccination against the corona virus is not the same as compulsory vaccination: "If there were a general obligation to vaccinate, there is a broad consensus among constitutional lawyers that it would not be permissible to force people to vaccinate," Marco Buschmann (FDP), the designated Federal Minister of Justice, told Redaktionsnetzwerk Deutschland (RND). One would probably treat violations "like a misdemeanor and attach a fine to it."
Corona: Who would control the mandatory vaccination?
Since the vaccination against the corona virus has already been available to most citizens without restriction and free of charge for several months, the implementation that Battis addresses would thus primarily be a matter of ensuring that after the independently organized and carried out vaccination of the Proof of immunity with the employer must be provided.
Again, a look at March 2020, when mandatory measles vaccination was introduced, shows how this process could work: Since then, anyone newly admitted to one of the institutions mentioned in the law, such as a daycare center, must provide proof of measles vaccination. Employees of such facilities were subject to a month-long Transition period.
The simplest proof is the yellow vaccination card, the child examination booklet – or in the case of vaccination against Covid-19, the Corona vaccination certificate. In the case of the measles regulation, however, it was also accepted that a medical certificate, which proves that one had the measles already, is presented.
Compulsory vaccination: What happens if you are not vaccinated??
Who can not provide the measles vaccination proof, which threatens the Exclusion from daycare. Even staff may not work in community facilities without vaccination protection. However, no child can be excluded from school simply because it has not been (sufficiently) vaccinated against measles. This contradicts the compulsory education in Germany.
Schools are required by the federal states to report children without proof of vaccination to the health authorities. The affected family is then usually invited to an official vaccination consultation at the public health department. If the parents refuse, they have to be Fine reckon.
Accordingly, nursing facilities and hospitals could also proceed if an occupational vaccination requirement against the coronavirus were enacted – because staff in these places can come into contact with the pathogen particularly frequently. So the state, in cooperation with the federal states, would have to guarantee that against Violations is proceeded. On the other hand, employers would have a duty to check the vaccination status of their employees.
Comparison with compulsory measles vaccination: What could workers face??
Depending on the form of the compulsory vaccination, different measures would be conceivable from a legal point of view should employees refuse to comply with a compulsory vaccination. From being transferred to a position with no contact with at-risk groups to being Leave of absence without payment up to a Termination – a law would have to formulate clear rules. In any case, both employers and employees are likely to legally oppose mandatory vaccinations as well as their sanctions. It is questionable to what extent such a regulation could be reconciled with German protection against dismissal.
To break the fourth wave, however, mandatory vaccination may come too late: Until a possible Introducingg could be weeks away. By then, it would be several more weeks before all eligible people were fully immunized. In addition, the state would have to guarantee a generous transition period – similar to measles protection. So by the time there would be no way to delay vaccination, at least in time, it would probably be springtime.