What may and what must the employer do?
Since yesterday, a number of amendments to the Epidemics Act and the Covid 19 Measures Act have come into force. We have thus summarized the most important operational topics on the subject of "Testing and Vaccination".
Extended testing obligations at places of work
The Covid 19 Measures Act includes a special provision for testing at work. The testing requirement may be imposed for work locations (entry and travel) where there is a risk of infection with SARS-CoV-2 because of the nature of the activity or physical contact with other persons. This applies not only to customer contact, but also, f.e. at workplaces where office activities are performed by several employees at the same time and physical contact cannot be ruled out. This does not require direct physical contact; rather, personal contact or other physical proximity that poses a risk of infection.
Employees are required to perform a test for SARS-CoV-2 infection and to bring appropriate proof. If employees cannot prove their health status is stable, the employer must allow a test to be conducted either on-site or off-site (e.g., in testing lanes). By decree of the Minister of Health, it may be determined that business premises where there is prolonged interaction with other persons may only be entered by customers or guests if a negative test is presented to the owner.
In response to the emergence of virus variants with even greater potential for infection, the previously envisaged obligation to require the use of a FFP2 mask as an alternative to testing has been dropped.
Vaccination and labor law
Employees who wish to be vaccinated voluntarily must do so outside of working hours, as is the case when visiting a doctor. However, if this is not possible (e.g. due to a specified vaccination date), the employer must give the employee the necessary time off with continued payment (personal reason for not being able to work).
In contrast to already existing (e.g. homes for the elderly, nursing homes and homes for the disabled) and the future extended testing obligations at places of work described above, there is no legal obligation to be vaccinated. Since employers are responsible for the health and safety of their employees as part of their duty of care, and employees have a duty of loyalty to look not only after their own health but also that of others at the workplace (colleagues, customers, superiors) and to prevent infection with Covid-19, an order by the employer to be vaccinated will nevertheless be justified in certain cases. This applies, for example, in any case in hospitals, old people's homes and nursing homes as well as inpatient housing facilities for the disabled. The prerequisite for ordering a vaccination is, of course, that a Covid 19 vaccination is available for the employees. However, to the extent that palliative means should suffice (such as separating employees from other employees, etc.) to prevent Covid-19 infection, ordering vaccination is not permissible. Evidence that there is no lesser means must be provided by the employer. Refusal of a rightfully ordered vaccination may trigger consequences under labor law, up to and including termination of employment. Before taking any action under employment law, it should be checked whether there are any permissible exceptions that employees can invoke.
Vaccinated employees are largely protected against infection with Covid-19 and are far less infectious than unvaccinated employees. The presence of an unvaccinated employee, on the other hand, requires extended protective measures at the workplace (such as, in particular, distance rules, obligation to wear a mask, hygiene regulations). In order to implement the necessary measures, the employer needs to know the vaccination status of his employees. Since the question about the vaccination status concerns the clarification of the highly infectious notifiable Covid 19 virus, the employer is entitled to inquire about the vaccination status of job applicants as well as his employees. If untruthful information about the vaccination status leads to the fact that strict Covid 19 protection measures at the workplace (such as distance rules, obligation to wear mask, hygiene regulations were not observed, then this can also lead to consequences under labor law - up to and including termination of the employment relationship.
Equality of vaccinated with recovered and tested
Persons who, on the basis of a protective vaccination against Covid-19, can be assumed not to pose a disproportionately greater epidemiological risk, will in principle be treated the same way as recovered and negatively tested persons with regard to access requirements. Exceptions are only permitted for absolutely necessary epidemiological reasons. The Minister of Health shall determine by decree which vaccinations, at which intervals or in which combinations, from which point in time (e.g. a certain day after administration of a vaccination) and for which period of time are suitable to justify the basic equality.
A justification for departure from the principle of equal treatment on epidemiological grounds could be given if there is contact with members of vulnerable groups at the location to which the requirement to carry out the test applies and a residual risk is therefore unacceptable because of the associated consequences. In this case, vaccinated and recovered persons would also be obliged to carry out a test and to carry the corresponding proof. Regulations in this regard are to be made in the ordinance, which also provides for the respective test requirement.