Facility-based mandatory vaccination applies from March 16, 2022! Employees of pharmaceutical and medical technology companies are also affected

Hogan Lovells

Pharmaceutical and medical technology companies are already required to check the status of their employees as vaccinated, recovered or negative tested before they enter their own workplaces or those of other employers (Sec. 28b Para. (1) Infection Control Act [Infektionsschutzgesetz – IfSG]). Visitors to certain facilities (e.g. hospitals, doctors' and dentists' surgeries) also require a negative corona test (Sec. 28b Para. (2) IfSG). These regulations expire on March 19, 2022.

In addition, all persons working in certain facilities are subject to a so-called facility-related vaccination obligation (Sec. 20a IfSG) for the period from March 16 to December 31, 2022. The Federal Ministry of Health (BMG) has published FAQs (German version only) on this topic. This shows that the regulation should also apply to employees of pharmaceutical and medical technology companies if they enter corresponding facilities for their work. We summarize the most important points as follows:

What is the scope of application?

In particular, hospitals, preventive care and rehabilitation facilities, doctors' and dentists' practices, and care facilities for the elderly, disabled and people in need of care are covered (complete catalog in Sec. 20a Para. (1) IfSG).

Not only employees of corresponding facilities and companies are covered, but all persons who are "working" in such facilities and companies. The type of employment is not relevant. External persons working in such facilities are also to be covered. Only persons who enter such buildings for only a few minutes are to be excluded.

According to the BMG, the regulation thus also applies to employees of pharmaceutical and medical technology companies who are working in the relevant facilities or companies. This applies in particular to pharmaceutical representatives, medical device consultants, employees for clinical studies and lecturers, as well as installers, fitters and technicians of medical equipment.

What must persons working in corresponding facilities and companies do?

Persons working in such facilities/companies must provide the management of such facilities/companies with proof of vaccination, proof of recovery from COVID-19 or a medical certificate of a contraindication to vaccination ("proof"). Appropriate evidence must also be presented to the Health Department upon request.

What do the relevant institutions and companies have to do?

Persons working in relevant institutions and companies must submit the relevant evidence by March 15, 2022. If no such proof is provided or if there are doubts about the authenticity of the proof, the responsible health authority must be informed by the management of relevant institutions and companies. The health authority can then impose a ban on activity/employment on individual persons.

Individuals who are not yet employed and are scheduled to be employed on or after March 16, 2022, may only be employed if they have provided proof of such employment. An additional decision by the health department on a ban on activity/employment is not required.

For externals who did not work regularly until March 15, 2022 (e.g., only irregular visits), it is unclear whether they are immediately subject to an activity/employment ban if they fail to present appropriate proof. In any case, they should be prepared for the fact that the institution/company will only allow external persons to enter within the scope of its in-house rights if appropriate proof is provided.

What happens if appropriate evidence is not provided?

If the performance of work is impossible due to a ban on activities or the denial of access to corresponding facilities/companies and no other employment opportunity exists, the entitlement to remuneration may lapse in individual cases. Termination may also be considered if the employment relationship is significantly disrupted as a result.

If someone works in a corresponding institution/company despite a ban on activities, a fine of up to EUR 2,500 may be imposed for each violation (Sec. 73 Para. (1a) No. 7f, 7g, Para. (2) IfSG). Fines may also be imposed on the relevant facilities/companies (Sec. 73 Para. (1a) No. 7g, Para. (2) IfSG).

Can contract employers control their employees even if they themselves are not a relevant institution/company?

Only the facilities and companies listed are obliged to provide the relevant evidence and, if necessary, to report to the health authorities. There is no explicit legal basis for contract employers who deploy their employees in such facilities and companies.

It is true that pharmaceutical and medical technology companies are obliged until March 19, 2022, to check the status as vaccinated, recovered or negative tested of their employees even before they enter the workplaces of other employers (Sec. 28a Para. (1) and Para. (3) IfSG). However, such status may only be collected in this context for the employer's own access control and hygiene concept. Whether the data can be used for other purposes or whether the pharmaceutical or medical technology company may collect data from its employees to carry out checks in favor of relevant institutions/companies must be examined on a case-by-case basis.

What to do?

Employees of pharmaceutical and medical technology companies must be prepared for the fact that hospitals, care facilities, doctors' and dentists' practices, etc. will carry out appropriate checks and, from March 16, 2022 at the latest, will only allow access to their facilities on presentation of appropriate proof.

Pharmaceutical and medical technology companies should inform affected employees so that they can prepare themselves and – if they have not already done so – still get appropriate vaccination. To ensure sufficient protection by the deadline, the first vaccination should take place as soon as possible, but no later than the end of January/beginning of February 2022.

If employees can no longer be deployed, the effects on compensation and the initiation of labor law measures must be examined for the specific individual case. Data protection issues also arise with regard to the collection and disclosure of the status as vaccinated or recovered of the company's own employees.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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