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A scenario of terror for those who do not want to be vaccinated: only those who are vaccinated can return to the office. At the start of the national vaccination on Monday, only people over 75 and high-risk patients have their turn. In a few weeks the rest of the population will have a turn. And then at the latest the employer can participate.
Isabelle Wildhaber (47), Director of the Department of Private and Commercial Law at the University of St. Gallen, and Nicole Vögeli (52), a lawyer specializing in labor law, answer the most important questions for BLICK.
There is nothing in my contract about mandatory vaccinations. Can the employer still request the vaccination?
In principle, the employer has a duty to protect its employees. The employer can request a vaccination through the so-called right of instruction. This allows the employer to give instructions on behavior in the workplace. «The right to give instructions is restricted by the protection of the employee’s privacy. A vaccine interferes with personal rights. So that can only be justified by intense commercial interest, ”says Wildhaber.
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So only healthcare workers should get vaccinated?
A vaccination order is only possible in professions where vaccination is necessary and there is no option to work from home. “That should be the case especially when there is physical contact with people in the risk group, such as in caring for the elderly, in contact with cancer or diabetic patients,” Wildhaber explains. Each health organization decides for itself if it wants vaccination to be mandatory.
Vögeli goes even further: “There is direct contact with vulnerable people even when there is greater personal contact with third parties. For example, customers, students, passengers, or other employees. ”Specifically, this means: Teachers and flight attendants should also get vaccinated.
My boss still wants to force me to get vaccinated, now what?
If you are not working in an occupation that requires vaccination, vaccination instructions are not allowed. And it is not necessary to follow an illegal instruction. However, what may be possible are milder prompts. Vaccinated people can return to the office from home more quickly.
Can they force me to stay at the central office if I am not vaccinated?
“In the office in particular, mandatory vaccinations seem less applicable. There would have to be other factors, like working with vulnerable people, ”explains Vögeli.
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Can I be discharged if I refuse to be vaccinated?
Basically no. However, the nursing staff can be warned. A normal, so-called ordinary termination is still possible. “In the case of refusing to vaccinate, you can correctly terminate the contract,” says Vögeli.
I receive Corona because I did not want to be vaccinated and I cannot work. Do I still receive a salary?
Yes. Refusing to pay wages if instruction is refused is not allowed. “The fact of not receiving the Covid-19 vaccine alone is not serious enough to assume that the person cannot work due to a fault,” says Vögeli.
Can the employer contractually stipulate mandatory vaccination?
If vaccination is mandatory in the contract, there is more room for maneuver. “However, mandatory vaccination must always be functionally related to the activity to be carried out and objectively justified. In view of the usurpation of the worker’s personality, the obligation to vaccinate would have to be agreed in an individual contract, a provision in the personnel regulations or in the general conditions of employment is not enough ”, says Wildhaber.
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Can the employer adjust the contract retroactively?
For a later change in the contract due to a mandatory vaccination, the employer would have to issue a notice of change. However, Wildhaber emphasizes: “It should be noted that in the event of a large number of change layoffs, the rules for mass layoffs may apply.”
Does my family have to get vaccinated too?
Anyone who works with high-risk patients could transmit the virus. Vaccinating the whole family would reduce this risk. However, such instructions from the employer are not permitted. “Vaccinating the whole family goes too far,” Wildhaber says.
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Can I get vaccinated during business hours?
If the employer orders vaccination, the vaccination time should be counted as working time. “The order goes into effect immediately as soon as the vaccination doses are available,” says Vögeli.
Will the general compulsory vaccination come?
No. “Mandatory vaccination can only be done for precisely defined groups of people and should be discontinued as soon as there is no longer any significant risk,” Vögeli said.
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