Covid-19 vaccination compulsory in the workplace?

No fundamental right of the employer to order mandatory vaccination

Both parties to the employment relationship have contractual obligations. For example, the employer has a general duty of care to protect the health of its employees. It is also legally obliged to take preventive measures against COVID-19 due to the coronavirus pandemic, which is unfortunately still ongoing. However, this duty of care on the part of the employer does not mean that the employee is obliged to be vaccinated.

In contrast, the employee has a contractual obligation to follow the employer’s general instructions and any special instructions given to him in good faith. However, this does not give the employer a tel quel right to impose a vaccination obligation.

Legality of a compulsory vaccination ordered by the state

Forced vaccination would constitute a serious encroachment on the fundamental rights of physical integrity, personal freedom and freedom of will. There is no provision for a general state-imposed vaccination requirement, especially as its legality would also be highly questionable. Vaccinations against Covid-19 are therefore voluntary in Switzerland.

However, based on the Epidemics Act, the Federal Council has the option of making vaccinations compulsory for vulnerable population groups, particularly exposed persons and persons who carry out certain activities. Compulsory vaccination by the state is therefore only permissible for clearly defined groups of people.

Admissibility of a mandatory vaccination ordered by the employer?

Employers can safely encourage their employees to be vaccinated against COVID-19 or even offer corresponding bonuses. This is in line with the vaccination strategy of the Federal Office of Public Health (FOPH). However, vaccinations must always remain voluntary. A general vaccination obligation for all employees of a company is clearly not permissible.

The employer can only order compulsory vaccination if there is a specific and proportionately high risk to employees or third parties (e.g. patients, clients, work colleagues). However, less drastic protective measures must always be examined first and the interests involved weighed up. Furthermore, compulsory vaccination should be limited in time. One possible use case is doctors and nursing staff who are in direct contact with particularly vulnerable patients in retirement homes, hospitals or surgeries on a daily basis.

For an employer, vaccinating its employees against the coronavirus can be of great economic importance. According to current knowledge, the risk of severe disease progression is drastically reduced by vaccination, resulting in fewer cases of illness. Unvaccinated employees with customer contact could also be at a competitive disadvantage and pose reputational risks. On the other hand, there are the aforementioned fundamental rights of employees. A balancing of interests will therefore generally be in favor of employee freedom.

A vaccination requirement is also permissible if a vaccination is required by the authorities to carry out the work anyway and no work may be carried out without a vaccination. One conceivable use case is flight personnel in passenger air traffic. In this case, mandatory vaccination is lawful because international flights are only permitted for vaccinated persons and the work could no longer be carried out without vaccination.

What happens if I refuse to be vaccinated?

If the employer is permitted to order compulsory vaccination in exceptional cases, an employee’s refusal to do so constitutes a breach of his or her duties under employment law. This may result in a warning, transfer within the company or, as a last resort, dismissal.

If, on the other hand, a vaccination obligation is not lawful, which is likely to be the case on a regular basis, the vaccination instruction is an unlawful instruction from the employer that does not have to be complied with. Accordingly, sanctions by the employer would also be inadmissible. A termination based on this would be abusive.

Do I have to inform my employer about my vaccination status?

What has been said about the vaccination obligation applies analogously to the disclosure of the vaccination status against Covid-19. If the employer can specifically request a vaccination, the employees must inform the employer about their vaccination status against Covid-19.

Incidentally, the time spent on a vaccination – ordered by the employer – always counts as working time and must therefore be paid.