Experts report on the complex legal situation in Austria.
How testing and vaccinations can be handled in the workplace is another much-discussed aspect of the corona pandemic. But what employers can legally stipulate and what the rights of employees are often still comes with a question mark.
An article on this topic has now appeared in the Standard In it, Christoph Wolf, honorary professor of labor law at the University of Vienna and partner at the CMS law firm in Vienna, and Andrea Potz, labor law expert and also partner at CMS, write about the complex legal situation.
There are two main issues here. The former deals with the question of whether employers can require their employees to undergo corona tests. The other question is about what the legal situation looks like if employees refuse to be vaccinated against the employer's wishes.
According to experts, compulsory testing is reasonable
Regarding the first question, the experts write that compulsory testing is reasonable. They refer to certain obligations between employers and employees that arise from the employment contract: “The legal mutual protection, care and interest protection obligations are therefore particularly strong. At the core of these protective obligations is the life and health of employees, which the employer must proactively protect.”
This also means that it is the duty of employers to protect all (including other) employees. Even if personal rights must be protected, and the announcement of a test result would of course be a step, according to the experts, a balancing of interests must take place here.
Wolf and Potz therefore point out that for certain diseases, here they give the example of hepatitis C in a surgeon, there are already special reporting requirements because an infection means that work can no longer be carried out safely. This is also the case with Covid-19.
Because the infection exists here in general and this is about “general health and risk protection in a pandemic”. According to Wolf and Potz, employers can therefore order testing. To do this, employees must also be released and continue to be paid during the testing period.
What about the vaccinations?
When it comes to the question of how vaccination refusals can affect the employment relationship, the legal situation seems to be a little more complex. First of all, Wolf and Potz write that “an actual “vaccination requirement” cannot be justified in the employment relationship without an express legal basis.”
There is currently no compulsory vaccination. Chamber of Labor legal expert also says: “According to the current legal situation, employers cannot oblige their employees to be vaccinated against Covid-19.”
Nevertheless, according to Ohr, there are already exceptions: “In individual areas, such as nursing, the Epidemic Act already regulates the possibility of generally ordering protective vaccinations.” In addition, the Bioethics Commission for Health Professions has made a vaccination recommendation that makes vaccination a certain “professional requirement.” make.
Refusal to vaccinate can also lead to consequences under labor law in other areas of work. Simply because there is no protection against dismissal in many professions, as Ohr explains. In these cases the situation would then have to be checked.
Legal exceptions would apply to pregnant women and people who cannot be vaccinated for medical reasons or for whom the vaccine is not approved. , Wolf and Potz see the situation as such that the balance of interests would speak in favor of testing and vaccinations in most cases.
Therefore: In many areas of work, vaccination cannot be required directly by employers under the current legal situation, but, according to the experts, a refusal can lead to dismissal.
What is the situation with applications?
According to the legal expert from the Chamber of Labor, initially no obligation to provide correct information about the vaccination status, but this does not apply if non-vaccination poses a risk to people who are in close contact with the company. This applies, for example, to applicants in the healthcare sector. If you refuse to provide information about your vaccination status, the application does not have to be considered.
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Ohr also explicitly points out that private companies have the right to decide with whom they enter into a contract anyway. The situation is different for public educational institutions such as schools; according to the current legal situation, a vaccination cannot be required for admission to the institution.
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Notes:
1) This content reflects the current state of affairs at the time of publication. The reproduction of individual images, screenshots, embeds or video sequences serves to discuss the topic. 2) Individual contributions were created through the use of machine assistance and were carefully checked by the Mimikama editorial team before publication. ( Reason )