There will be no general mandatory COVID-19 vaccination in Switzerland. Independent vaccination directives by employers are only permitted in special cases.
Vaccination as an effective health protection measure
Without doubt, vaccination is the most effective measure to prevent infection with COVID-19 in the long term. Due to the increasing availability of vaccines, it will be possible to vaccinate large portions of the population in Switzerland in the foreseeable future.
However, there is a certain scepticism about vaccination among a large part of the population. Only recently, employees in nursing homes and health care facilities made headlines, with large numbers resisting the offered vaccination.
For employers, the question arises as to whether and under what conditions it is possible to order mandatory vaccination of their employees. This is because, as part of its duty of care, the employer must take all reasonable and appropriate measures to protect its employees from infection in the workplace. Customers, patients and other persons involved must also be protected. Finally, the economic interest in safeguarding and promoting business activities must also be taken into account.
Right to issue directives
The employer may issue directives to its employees regarding the performance of work and conduct in the company (Art. 321d OR). This right to issue directives represents a possible basis for the binding directive to vaccinate employees.
However, the employer's right to issue directives is not absolute, but must be exercised within the limits of mandatory legal and contractual provisions. In particular, the directives must be proportionate, for the assessment of which all circumstances of the individual case are taken into account and the interests involved are weighed against each other.
Interference with personality rights
Vaccination primarily affects the physical integrity and thus the personality rights of a person by piercing the skin with a needle and injecting the vaccine.
According to the Federal Office of Public Health, the resulting health impairment is limited to relatively mild side effects in the vast majority of cases. A slight majority of the test subjects complained of fatigue and headaches with a clear minority reported chills, aching muscles or fever. In very rare cases, serious allergic reactions may occur. Despite the relatively low risks, the interference with physical integrity has a heavy impact on personality rights.
Cases in which employees voluntarily agree to COVID-19 vaccination, whether in the employment contract or upon request, do in our opinion not constitute an excessive self-binding obligation and are therefore permissible. However, if employees do not wish to be vaccinated, the proportionality of a directive from the employer is decisive in determining whether it is binding.
Proportionality
An involuntary vaccination directive by the employer must be examined for its proportionality according to the circumstances of the individual case.
First of all, the vaccination must be necessary in the individual case in order to prevent infections in the context of the operational activity and to achieve the primary objective of protecting the health of the persons involved. If effective and reasonable milder measures are available to achieve this goal, the vaccination directive is not proportional. For example, if remote work is possible without any problems or the work is performed in individual offices. A distance of two meters in an open-plan office or the wearing of face masks is not likely to be a sufficient mitigating measure, as it cannot reliably prevent infection. Even milder measures must, of course, be reasonable, which is why very complex solutions such as full-body protective suits with respirators, etc., are generally out of the question.
In a next step, the operational interests of the employer must be weighed against the personality rights of the employees. Since this is a serious encroachment on the personality rights of the employees, such an encroachment can only be justified by serious private or public interests. Such interests will regularly not exist in a standard employment situation, which is why a vaccination directive would be disproportionate and thus not permissible.
Only special situations can justify a vaccination directive by the employer. The first we need to consider are companies that involve people who are particularly susceptible to COVID-19 (e.g. nursing homes, hospitals, doctors' surgeries, homes for the disabled). In our opinion, a vaccination directive should generally be permissible in such cases. This is particularly the case in systemically important establishments where there is a substantial public interest in their ability to function. As a counter-argument, however, it could be argued, at least in the case of establishments with a fairly constant clientele (e.g. nursing homes), that with the increasing availability of vaccines, vaccination of the susceptible persons themselves would be possible as a milder measure. The concrete risk of infection is also always relevant. Thus, in functions with a lot of contact with (potentially) infected persons, compulsory vaccination (also for involuntary self-protection) is more likely to be permissible. However, mere contact with numerous persons (e.g. at the supermarket checkout) is not sufficient.
There is currently a debate on whether Switzerland should introduce mandatory vaccination for certain exposed occupational groups (e.g. health and other care professions) on the basis of the Swiss Epidemics Act. Such a mandatory vaccination requirement under public law could also be challenged and its proportionality reviewed. Employers could, however, invoke this legal basis for their own measures and sanctions.
Constellations are also conceivable in which a possible foreign vaccination obligation would have to be observed in the future in order for an employee to perform his or her work. For example, a vaccination directive might be permissible for airline cabin crews if a country served requires COVID-19 vaccination for entry.
Sanctions
It is clear that employees cannot be physically forced to undergo COVID-19 vaccination, even if they are legally obliged to do so. However, the question arises whether and how a refusal can be sanctioned.
Employees must comply with proportionate directives from their employers. In the event of non-compliance, proportionate disciplinary measures ranging from a warning up to dismissal could be imposed. Exclusion from work with suspension of salary payments would also be conceivable under certain circumstances.
However, it should be borne in mind that in most cases the admissibility of a vaccination directive by the employer is likely to be associated with a considerable risk of litigation. If the vaccination directive is not permissible, there is a risk of claims by the employee (e.g. for wages, damages or compensation). A dismissal based on non-compliance with an impermissible vaccination directive would qualify as abusive.
Conclusion
An involuntary vaccination directive by the employer must be assessed according to the circumstances of the individual case. Apart from special cases with particular interests, such a directive would generally be disproportionate and would accordingly not have to be complied with by the employees. Any sanctions could then quickly backfire.
If you have any questions on this topic, please do not hesitate to contact our employment law team.
Authors: Marc Ph. Prinz, Gian Geel
