Possibilities of easing Covid protection measures for companies with a fully vaccinated or recovered workforce

Work life has been characterised for months by various Covid-related occupational health and safety measures. With the increasing immunisation levels in the population and the easing of Covid protection measures in everyday life, the question now is whether there will be a corresponding relaxation of occupational health and safety measures within companies.

The German SARS-CoV-2 Occupational Health & Safety Regulation, in force since 10 September 2021, now provides that employers may take into account the known vaccination or recovery status of employees when determining occupational health and safety measures. Employers can reassess their protective measures when updating their risk assessment pursuant to section 5 of the German Occupational Health & Safety Act and, if needed, adjust the necessary measures for their company. In particular, the provisions of the German SARS-CoV-2 Occupational Health & Safety Regulation, the provisions of the German SARS-CoV-2 Occupational Health & Safety Code, the currently applicable rules of the relevant federal state as well as the industry-specific recommendations of the statutory accident insurance institutions must be considered in the risk assessment.

The German Social Accident Insurance Association (DGUV) issued an opinion on dealing with vaccinated/recovered persons in the context of the SARS-CoV-2 pandemic and showed which relaxations of Covid protection measures for employers may be considered and on what conditions using a list of examples (see p. 3 onwards of the opinion). In summary, employers can waive the “hands, face, space + fresh air” measures in individual cases provided it is ensured that

all employees or

a specific group of staff

are vaccinated or recovered.

To take effect, the vaccinated or recovered persons within the meaning of the German Covid-19 Protection Measures Exemption Regulation should not have any work-related contact with non-vaccinated/non-recovered employees or third parties during working hours. The option of partial relaxation of the rules for certain vaccinated or recovered staff groups therefore ultimately depends on the circumstances of the individual case, in particular whether contact with non-vaccinated persons is ruled out.

In practice, however, easing of the Covid protection measures will only be implemented to a limited extent. According to the opinion of the DGUV, it is already ruled out if an employee in the workforce or staff group has not been vaccinated or recovered or cannot be vaccinated, for example for medical reasons.

Other difficulties arise from the fact that the recovery status is time-limited; the Covid infection must be at least 28 days in the past but not more than six months ago. If a recovered employee failed to get vaccinated (in time), the employer would be forced to again take more stringent measures against Covid.

In addition, and this is likely to be employers’ biggest obstacle, employers must have certain knowledge of the vaccination status of their employees before they can ease occupational health and safety measures. If not all employees voluntarily report their vaccination status, which is likely to be the case in larger companies, the question arises whether an employer has the right to enquire the employees about their vaccination status?

Whether the employer is allowed to gather information on the vaccination status of its employees has not yet been clarified by the courts and is controversially discussed in the legal literature. The DGUV argues that employees are in principle free to communicate their vaccination or recovery status or not. However, the data privacy authorities have shown a certain willingness to take the special features of the pandemic in data protection assessments into account. For example, on the issue of compensation payments under the first sentence of section 56(5) German Infection Control Act, the employer is quite rightly entitled to ask questions (see No more compensation for the unvaccinated – Can employers now ask about vaccination status?). Whether this result can be transferred to the intended easing of occupational health and safety measures seems doubtful. An employer’s interest in determining whether the employee is entitled to compensation is evident, especially since only the employee in question is affected. It is more difficult to assess whether the interest of the employer and that of other employees in relaxing the protection measures in the company outweighs the interest of the employee in his/her privacy.

As a result, easing occupational health and safety measures due to the vaccination or recovery status of employees seems to be more feasible for smaller companies. Due to the manageable circle of employees and the frequently personal relationships, the employer can mostly ensure that the above criteria for easing Covid-related occupational health and safety measures are met. In larger companies, the employer will usually not know the vaccination status of all its employees, also because a right to query that status is viewed sceptically. In addition, it is more likely that one of the employees does not want to or will not be able to be vaccinated. A relaxation of measures can then be considered especially in cases where the company is divided into smaller groups which do not have any cross-group personal contact. It is also conceivable that the employer is aware of vaccination status of groups of employees as a result of vaccination campaigns carried out in the company. Whether and to what extent employers can ease occupational health and safety measures due to the vaccination or recovery status of the employees must therefore always be examined on a case-by-case basis.