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04.02.2021 | KPMG Law Insights

Possibilities and limits of compulsory vaccination for civil servants

Possibilities and limits of compulsory vaccination for civil servants

As vaccine research against COVID-19 has progressed and the first mass vaccinations have begun nationwide, the discussion of mandatory occupational vaccination has arisen almost simultaneously. Even if the legislator has not yet provided for the introduction of a (general) statutory obligation to vaccinate in the Infection Protection Act and such an obligation can certainly only be agreed upon in a legally effective manner in justified exceptional cases, the question of a corresponding obligation arises separately in the civil servant relationship: Does this relationship already provide a basis for an obligation to vaccinate according to its current legal structure or can a corresponding further development in this direction perhaps even be permissibly expected?

In such considerations, it should be noted in advance that a vaccination requirement is subject to high constitutional hurdles. This would mean an encroachment on various fundamental rights of the persons concerned, such as, in particular, physical integrity (Article 2 (1) sentence 1 of the Basic Law), but also general freedom of action (Article 2 (1) of the Basic Law) or the right to informational self-determination (Article 2 (1) of the Basic Law in conjunction with Article 1 (1) of the Basic Law). As a result, a balancing of high-ranking goods would have to be carried out here: For example, the burdens and risks to the physical integrity of the civil servant from a protective vaccination would have to be weighed against the danger from a disease, in particular on the basis of the mortality rate and the probability of serious damage to health from COVID-19. Irrespective of this, it is in any case recognized that the fundamental rights guarantees also apply fully in the civil servant relationship – despite the “special position” of civil servants vis-à-vis the state, which must be recognized in principle: Civil servants are fully entitled to fundamental rights in the face of any obligation to vaccinate simply because such an obligation would affect them not only in their employment relationship but also in their basic relationship (i.e., in the private sphere). Thus, the above constitutional considerations form the framework for a possible obligation to vaccinate (also) in the civil service.

If one examines specifically the mutual rights and obligations of the employer and the civil servants resulting from the civil service and loyalty relationship with regard to a possible duty to vaccinate, the first thing that comes to mind is the civil servant’s duty to maintain good health. This can be derived from Art. 33
Para. This can be derived from Section 4 of the Basic Law in conjunction with the duty of full personal commitment to one’s job (see Section 61 (1) sentence 1 of the BBG and Section 34 of the BeamtStG) and includes the effort to preserve one’s health to such an extent that one’s ability to perform one’s duties is not culpably restricted or eliminated. It is noticeable here that the legislator does standardize requirements specific to occupational groups. For example, federal law enforcement officers under sec. 14 para. 3 BPolLV not only to maintain their physical fitness, but also to increase it as far as possible. This also includes that civil servants undergo notified and reasonable curative treatment if no milder means of regaining health exists. Even though this will certainly always be a case-by-case decision (“reasonable”), a legislative intention can be derived from the existence of this specification and from the non-existence of comparable regulations for other civil servant occupational groups: The higher the physical demands on the performance of duty, the more far-reaching the employer’s obligations to maintain health may be. If this idea is transferred, comparable measures would be conceivable, for example, in the area of fire departments or, in particular, rescue services, where direct contact with infected persons is often to be expected. At this point, however, the question quickly arises as to how to draw the line, since regular contact with infected persons is also possible in the school system, for example (but this is probably at least not typical of the profession). Ultimately, the derivation of a general vaccination obligation for all civil servant occupational groups from the obligation to maintain health without differentiation does not seem possible at present.

The duty of civil servants to maintain good health is further contrasted with the employer’s duty of care, which in turn derives from Art. 33 Para. 4 GG in conjunction with. § Section 78 BBG or Section 45 BeamtStG. It obligates the employer to ensure the best possible protection for its civil servants against hazards to life and health at the workplace. Since an infection with COVID-19 threatens not only in the official, but also in the private sphere, an obligation to vaccinate (as an expression of the duty of care) would have an effect here and trigger the guarantees of the aforementioned fundamental rights. Ultimately, the above-mentioned, graduated considerations also apply here.

Apart from these existing legal bases, the legislator would also be free per se to explicitly standardize an obligation to vaccinate under status law. By way of example, reference can be made here to § 17a para. 2 SG (Soldiers Act) may be referred to. Accordingly, a soldier must tolerate medical measures even against his will if they serve to prevent or combat communicable diseases. This is the last stage (and thus an “ultima ratio” measure) of the aforementioned duty to maintain health, which also applies to soldiers in § 17a para. 1 SG finds. The fact that such an obligation is permissible, at least for soldiers, was already established by the Federal Administrative Court in 1969 (Case No. I WDB 11/68): Here, the Senate had dealt with the legality of a tetanus vaccination obligation for soldiers and assessed it as appropriate and constitutional with regard to the legal status of soldiers. Whether the judicial and thus also legislative intentions can also be transferred to the civil service relationship may be doubted in view of the soldier’s absolutely special position in the constitutional structure. If at all, this is probably only possible for occupational groups with increased risk transfer obligations. However, the implementation of such an obligation in simple law does not appear to be completely ruled out in view of the above argumentation.

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