Mandatory vaccination and COVID safety measures in the workplace

In the first episode of our Wolf Theiss Arbeitsrecht podcast in German, employment law experts Ralf Peschek and Matthias Unterrieder discuss the impact of mandatory vaccination on the employment relationship in Austria. They shed light on issues ranging from the introduction of mandatory vaccination in the workplace, including legal and operational issues, to the effects of mandatory vaccination on the individual employment relationship, as well as the topics related to data protection. 

This episode was recorded on 19 January 2022.

For questions about this episode and our Wolf Theiss Arbeitsrecht podcast, please contact arbeitsrecht@wolftheiss.com.

EPISODE SUMMARY

The Austrian mandatory vaccination law does not have direct effects on the employment relationship. The rule that only vaccinated, recovered or tested persons can be present in the workplace (known in Austria as the “3G rule”) still applies. Employers may introduce further stricter protective measures, such as allowing only vaccinated or recovered persons access to work premises (“2G rule”), however, they will need to justify the introduction of these.

Involvement of the works council 

Any request from a works council for such measures and associated controls should be taken seriously. However, in our view, there is no legal obligation to conclude a works council agreement, since the regulation about protective measures allows for controls. 

Vaccination as a prerequisite for hiring

Employers can introduce vaccination as a prerequisite for hiring. 

Relationship with existing employees

The question of how to handle access to the workplace for existing employees who refuse to get vaccinated, and the question of their remuneration, is more problematic as it is legally unclear whether such inability to work due to being unvaccinated is to be associated with the employer or with the employee. In answering this, there are two perspectives to be considered: On the one hand, the fact that an employee does not perform his or her work can be attributed to the employer who introduced certain operational requirements. On the other hand, it can also be attributed to the employee who does not want to be vaccinated although it is legally acceptable and reasonable. 

The question of continued payment of salary for unvaccinated employees requires further evaluation and remains unresolved at this time. The termination of employees who cannot go to work because they do not want to be vaccinated is easier to answer. In Austria, termination of employment does not have to be justified. The dismissal of an employee on the ground that a person can no longer perform his or her duties because he or she does not want to be vaccinated is in itself legally permissible (although some exceptions are possible). However, in some situations a ‘balance of interest’ test will apply.

Data protection

In respect of data protection, those who stick to the restrictions on data processing and transfer according to the existing laws and regulations are on the safe side. At the same time, in the case of a concrete suspicion of, for example, falsified evidence of vaccination, it is permissible under the GDPR and the Austrian law to conduct a check for the authenticity and correctness within the established framework of controls.