Coronavirus: Compulsory vaccination at the workplace?

The most important aspects about the Corona vaccination

I. Current Situation

On 19 December 2020, Swissmedic granted approval for the first Covid-19 vaccine. The vaccination promises a fast and high degree of protection - thus, seven days after the second injection, the vaccination protection for adults is supposed to be over 90 percent. In this context, various legal questions arise, including whether and under what conditions a compulsory vaccination is possible in Switzerland. There is no doubt that any vaccination interferes with the right to physical integrity (fundamental right) and is therefore only permitted under very specific legal conditions. This magazine article answers the most important legal questions in this respect.

 

II. State Authorities

Since the beginning of the pandemic, the Federal Council has repeatedly emphasised that there will be no compulsory vaccination for the Swiss population. Rather, the Federal Council is relying on transparent and comprehensible information to enable everyone to decide for themselves whether they want to be vaccinated. Nevertheless, according to the Epidemics Act (EpidA), the Federal Council and the cantons are able to declare vaccination compulsory under certain conditions. According to art. 6 para. 2 lit. d EpidA, the Federal Council may declare vaccination compulsory for vulnerable groups of the population, persons who are particularly exposed and persons who carry out certain activities. In accordance with art. 22 EpidA, the cantons may also declare vaccination compulsory for the mentioned groups of people, provided there is in addition significant risk involved.

This means that a universal compulsory vaccination for the general population in Switzerland is not legally possible. However, for certain groups of the population, such as particularly exposed healthcare workers, there is a legal basis which would enable the Federal Council and the cantons to introduce compulsory vaccination.

 

III. Service Providers/Suppliers of Goods

However, the situation is different for private service providers or suppliers of goods. In principle, private providers are free to demand a proof of vaccination for the use of their services (freedom of contract). In the area of basic services, however, providers are obliged to conclude contracts with private individuals due to the prevailing obligation to enter into contracts in this realm. Accordingly, providers in the area of basic services are not permitted to demand proof of vaccination as a condition for the use of their services. For instance, there is also an obligation to provide transportation for public transport services.

 

IV. Employers

In the field of labour law, the question arises whether and under what conditions an employer is able to instruct the employee to undergo vaccination.

A. Employment Contract

An obligation for the employee to be vaccinated may derive from an employment contract which stipulates such obligation. In practice, however, this will be very rarely the case. While such contractual obligation to undergo vaccination may occur in certain health professions, it is not likely to be found in most other professions.

B. Instruction by the Employer

According to art. 321d para. 1 Code of Obligations (CO), the employer may unilaterally issue instructions to the employees to specify the employment relationship. Within the framework of a behaviour instruction, the employer may also issue an instruction to undergo vaccination in special circumstances in order to protect the health of the individual employee and the entire workplace. However, an instruction to undergo vaccination addressed to the entire company would not be considered reasonable in most cases. An obligation to undergo vaccination would however be permissible for employees who perform a particularly exposed activity, i.e. who have frequent contact with infected or vulnerable persons.

Should an employee disregard a justified instruction by the employer to be vaccinated, the employer may, if possible, transfer the employee to another position without frequent contact with infected or vulnerable persons. It can also be assumed that a termination based on the employee's refusal to undergo vaccination would probably not be considered abusive if the instruction was justified as outlined above.

C. Voluntariness

As a rule, it is advisable for employers not to impose a compulsory vaccination, as this could be counterproductive. Many employers, even in exposed fields of activity (especially nursing, etc.), may rather rely on proactive information about the advantages and disadvantages of vaccination and are advised to encourage employees to get a vaccine this way.

 

V. Conclusion

The Federal Council as well as the cantons are able to introduce a compulsory vaccination only for a limited group of persons, such as particularly exposed persons in the health sector. However, there are currently no plans to make use of these options. According to repeated statements of the Federal Council, there will also be no universal compulsory vaccination for the Swiss population – which has no legal basis anyway. The situation is different for private providers: In principle, they are free to demand proof of vaccination as a condition for the use of their services, on the condition that they do not provide services within the scope of basic care. Employers are advised to proactively inform employees about the advantages and disadvantages of vaccinations and thus encourage them to undergo vaccination voluntarily. Employers enjoy a certain freedom of action due to the right to issue directives and instructions: In individual cases, an instruction to undergo vaccination may be justified, e.g. for persons who work in a particularly exposed activity.

January 2021 | Authors: Michèle Stutz, Dschamila Jäggin

 

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