Vaccination bonus for employees – legally permissible or not?

Approximately 2.2 million people in Germany have now been vaccinated against the Corona virus, of whom only around 905,000 have received the necessary second vaccination. A rapid return to normality therefore still seems some way off. However, it can already be foreseen by employers that the shortage of vaccine and the predetermined vaccination distribution will lead to parts of the workforce being vaccinated earlier than others.

This raises the question, if employers may grant special privileges to employees who have already been vaccinated and whether they may even provide financial incentives for employees to get vaccinated as soon as possible. In addition, practical questions arise in the context of implementation, eg whether employees can be obliged to provide information about their vaccination status and how the works council must be involved.

Privileges for individual employees?

It should be noted at the outset that, due to an absence of a statutory obligation to vaccinate, employers cannot require their employees to be vaccinated either. They can therefore not impose any sanctions under labour law (such as a warnings or dismissals) against those who refuse to vaccinate. This may be assessed differently for employers whose area of responsibility is specifically the protection of vulnerable patients, eg in hospitals and in nursing.

However, in certain situations, it may well be justifiable to grant individual employees privileges over non-vaccinated employees. For example, employees who have been vaccinated could be allowed to return to the office at an earlier time as non-vaccinated employees, or could be solely allowed to use the social facilities, eg the coffee kitchen. In the assessment, particular attention must be paid to the general principle of equal treatment pursuant to Art. 3 of the German Constitution (GG) and the prohibition of disciplinary action pursuant to Section 612a of the German Civil Code (BGB).

The employer is obliged to treat its employees equally and not to disadvantage them arbitrarily. However, this does not exclude unequal treatment completely. Rather, the decisive factor for permissible unequal treatment is always the existence of a reasonable justification, i.e. whether the weight of the unequal treatment is outweighed by appropriate objective reasons. Such an objective reason can be seen in the employer's justified interest in maintaining the functioning of his business as best as possible. In this context, employers can refer to the right to established and practiced business operations pursuant to Art. 14 GG. In addition, employers are even obliged to observe the health of employees and to protect them from health endangerments in the workplace. This should generally constitute a sufficient basis to deviate from equal treatment in certain situations and to grant privileges to vaccinated employees, such as access to social facilities and potentially an early return to the office, without violating Article 3 GG and/or the prohibition of disciplinary action pursuant to Section 612a BGB. The same is likely to apply to the obligation to wear mouth/nose protection and to comply with distance regulations.

Ultimately, however, this remains a decision to be made on a case-by-case basis and may have to be reassessed in the light of the ongoing new developments. For example, once a certain vaccination quota has been reached in the operation that virtually excludes the possibility of disruptions of the workplace and the risk to the health of individual employees from a Corona outbreak, unequal treatment may no longer be justified.

Vaccination bonuses for employees willing to be vaccinated?

Lidl and Aldi have already announced that they will reward their employees who are willing to be vaccinated (for now only in the US) with a vaccination bonus. According to current information, a vaccination bonus of $200 is offered to all employees who have themselves vaccinated.

The offer of vaccination bonuses/incentives is also conceivable in Germany. Employers have an increased interest in ensuring that their employees are healthy and that there are no disruptions to the business' operations. In order to achieve the goal of a vaccinated workforce, the employer will therefore be allowed to create certain incentives. Although the withholding of benefits can also constitute unequal treatment or diminution of employees, the above considerations should allow for such unequal treatment when the specific interests of individual cases are weighed up. Admittedly, case law is generally restrictive in this respect and has, for example, only considered "attendance bonuses" that reward low absences due to illness to be permissible within narrow limits. However, a correspondingly proportionate arrangement within the limits of § 4 a Continued Remuneration Act (EFZG) was considered permissible and is therefore also here conceivable.

The design of such vaccination incentives can be varied and, above all, do not have to be exclusively financial. According to the Robert Koch Institute (RKI), for example, the Franziskus Hospital in Münster, Westphalia, succeeded in encouraging its employees to be vaccinated against influenza in 2019 by offering them a voucher for a serving of French Fries in the cafeteria. According to the RKI, this doubled the vaccination rate, and within the medical profession it even rose to 90 percent.

In addition, the mere offer of vaccination in the company by the company physician (as soon as the corresponding vaccination quantities are available) could also lead to an increase in participation. Here - as with the offer of flu vaccination by the employer - the focus is primarily on questions of liability law.

Considerations for implementation

When introducing and implementing privileges and/or vaccination incentives, two questions in particular will need to be considered. First, as an employer, how do I know which employees have been vaccinated? And does the introduction of these measures require the participation of the works council?

In the absence of an obligation to vaccinate, employers will in principle not be able to demand information from their employees as to whether they have been vaccinated. Especially as this is considered sensible health data, of which the processing is only permitted under narrowly defined conditions according to GDPR. In addition to the data protection concerns, there must also be a special legitimate, equitable interest of the employer in the information under employment law. According to the general principle of "job-relatedness", this interest is only assumed if there is a concrete connection between the information requested and the job performed, and for example, the information results in the job not being able to be performed. In the case of (purely preventive) vaccination, this can in principle have no influence on the performance of the activity itself. In the first instance, therefore, employers will have to rely on the voluntary cooperation of their employees.

In addition, the implementation will usually require negotiations with the existing works council. In the context of the vaccination incentives, this already results from the right of co-determination pursuant to Section 87 (1) No. 10 Works Constitution Act (BetrVG) (company wage structure), but also in the case of the granting of other privileges, Section 87 (1) No. 1 Works Constitution Act (BetrVG) (order and conduct in the company) is likely to be applicable. As a rule, the works council therefore has a right of co-determination, requiring negotiations on the implementation in advance. From a practical point of view, this - possibly lengthy - need for consultation is already likely to deter some employers from introducing such privileges.

In conclusion, the effectiveness of the introduction of such privileges and vaccination incentives must be assessed on a case-by-case basis and a proportionate design should be ensured. Besides  the legal permissibility which should ultimately be considered, employers are well advised to also consider potential consequences of such incentives for the workplace environment. There is an inherent risk, that this may lead to a negative working environment and divide employees into two groups.