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In brief

Reasons for a clear and definitive YES to COVID-19 vaccinations

Mandatory vaccination is not to be expected. Nevertheless, employers and employees can greatly benefit from COVID-19 vaccinations. This is true from a health, economic and legal perspective. Companies which recognize these benefits (early on) will have a significant competitive advantage.


Therefore, management should include the following benefits of a COVID-19 vaccination in their strategic considerations:

Vaccination as competitive advantage Customers and business partners clearly prefer to interact with vaccinated rather than non-vaccinated employees. In addition, any absences from work due to quarantines can effectively be avoided. Thus, the employment of vaccinated employees establishes a significant competitive advantage in the market.
Efficient exploitation of resources Once the workforce is vaccinated, expensive protective measures against the risk of infection at the workplace can be reduced. This improves the atmosphere within the workforce, which had to support previous protective measures. Also, personnel planning will become reliable again, as staff shortages due to repeated quarantine will cease. Against this background, resources can be exploited efficiently again based on COVID-19 vaccinations.
Duty of care vis-à-vis employees If employers ensure that their employees are vaccinated, they are complying with their legal duty of care towards their employees. The duty of care obliges employers to strictly eliminate infections at the workplace to the best of their ability. A violation of the duty of care may trigger damage claims by employees. So, COVID-19 vaccinations contribute a great deal in reducing the employer’s risk of liability vis-à-vis employees.
Duty of care vis-à-vis customers and third parties As vaccination coverage increases within the workforce, companies are also protecting their customers and business partners from being infected by employees. Thus, by ensuring COVID-19 vaccination of employees, companies pro-actively protect themselves against potential claims for damages from third parties.

Pro-active measures to achieve these benefits

Of course, employers can neither impose vaccinations on employees on their own nor in cooperation with the works council, as the COVID-19 vaccination is voluntary. Consequently, in order to achieve the positive effects of the COVID-19 vaccination, employers must take action and encourage their employees.

  • Encouragement to vaccination. In addition to informational events regarding COVID-19 vaccination, companies can promote COVID-19 vaccination to employees through company vaccination campaigns. Additionally, employers can make COVID-19 vaccinations more attractive through other incentives. This can be achieved, for example, through non-monetary benefits, such as time off for the day of vaccination, or monetary benefits (“vaccination bonus”).
  • Evaluation of the immunization status. Apart from company vaccination campaigns, the clarification of the vaccination status of the employees will be crucial. A simple survey concerning the employees’ vaccination status should be legally clarified in advance, in particular for reasons of data protection and co-determination vis-à-vis the works council.
  • Dealing with individuals who refuse to comply with the vaccination strategy. The way in which individuals who are sceptical towards the operational strategy regarding COVID-19 vaccination are dealt with has an enormous impact on the willingness of other employees to get vaccinated. Employers should therefore take a clear position as early as possible and determine options for dealing with such employees.

Set of measures for employers

In order for a company to benefit from advantages of COVID-19 vaccination, precise preparation is required. Against this background, we have put together a compact set of measures for your company, which we will be happy to adapt to your individual needs. Our offer includes four main areas:

  • Creation of a contractual set of rules regarding vaccinations. We evaluate necessary and beneficial regulations based on your company’s vaccination strategy. We also create vaccination guidelines for company vaccination campaigns and design incentive systems.
  • Works council and vaccination. A variety of information and co-determination rights of the works council exists in the context of COVID-19 vaccination. These range from the employer’s obligation to inform and consult with the works council to possibly concluding a shop agreement.
  • Dealing with employees rejecting the operational strategy. Dealing with individuals in a fair and correct way can effectively avoid long-lasting litigation. Therefore, we are happy to identify possible options and support you by implementing the most suitable options for you.
  • Data protection. Health data is sensitive data. Processing such data is subject to strict guidelines. We will be happy to prepare the necessary documentation, such as individual consent forms for COVID-19 vaccinations, in order to implement company vaccination campaigns, guidelines and data protection notices, etc.

We would be happy to provide legal advice and support for your company regarding COVID-19 vaccinations in an employment context.

Please feel free to reach out to us. We are very happy to remain at your disposal at any time.

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Author

Philipp Maier joined Baker McKenzie Diwok Hermann Petsche Rechtsanwälte LLP & Co KG in 2009 as associate of the employment law practice group. Prior to that Philipp worked for several years in the employment law department of Freshfields Bruckhaus Deringer and in the litigation department of Wolf Theiss Rechtsanwälte. He also completed an internship at Aichelin Heat Treatment Systems (Detroit, USA).

Author

Simone Liebmann-Slatin joined Baker McKenzie in 2003 and is a member of the employment law practice group. Since 2011, Ms. Liebmann- Slatin is a senior counsel in the Vienna office. She regularly delivers presentations on issues related to employment law in Austria, and is an active contributor to various publications, including Die Presse and Kurier.

Author

Victoria Fink joined the Vienna <a href="https://www.bakermckenzie.com/en"Baker McKenzie office as a junior associate in January 2019. Before joining the Firm, she gathered experiences as a junior associate in a renowned Vienna law firm for several years, where her main focus was on litigation, also before labor courts. Victoria passed the Austrian bar examination in 2020.

Author

Andrea Polzer joined Baker McKenzie as of September 2019 as junior associate. Prior to joining Baker McKenzie Andrea has been specializing in employment law and has gained respective experience for several years as junior associate in a renowned international law firm.

Author

Silvia Samek is a junior associate of Baker McKenzie's Practice Group Employment Law in Vienna. Prior to joining the Firm in December 2020, she completed her legal clerkship at various courts in Vienna and gained experience as a trainee in several renowned Austrian law firms. Silvia studied business law at the Vienna University of Economics as her main study. Additionally, she studied Executive Management at the FHWien University of Applied Sciences of WKW and European Economy and Business Management at the University of Applied Sciences BFI Vienna.