Unsuccessful constitutional complaint challenging the obligation for staff in the health and care sectors to provide proof of vaccination against COVID-19

Press Release No. 42/2022 of 19 May 2022

Order of 27 April 2022
1 BvR 2649/21

Proof of vaccination (COVID-19)

In an order published today, the First Senate of the Federal Constitutional Court rejected a constitutional complaint directed against § 20a, § 22a and § 73(1a) nos. 7e to 7h of the Protection Against Infection Act (Infektionsschutzgesetz – IfSG). These provisions require staff of certain institutions and organisations in the health and care sectors to provide proof of vaccination, recovery or medical contraindication to vaccination against COVID-19.

The challenged provisions do not violate the complainants’ rights under Art. 2(2) first sentence and Art. 12(1) of the Basic Law (Grundgesetz – GG). To the extent that the provisions interfere with these fundamental rights, the interferences are justified under constitutional law. The legislator was within its margin of appreciation, striking an appropriate balance between the protection of vulnerable groups from infection with SARS-CoV-2 on the one hand, and impairments of fundamental rights on the other. Despite the great intensity of the interference, the fundamental rights interests of the complainants, who work in the health and care sectors, ultimately have to stand back.

Facts of the case:

Pursuant to § 20a(1) first sentence and § 20a(2) first sentence IfSG, staff in certain healthcare or care institutions and organisations have been required as of 15 March 2022 to provide the management of their institution or organisation with proof that they have been fully vaccinated against COVID-19 or have recovered from the illness. Only persons with a certificate of a medical contraindication to vaccination are exempt from this obligation. If no adequate proof is provided, the management of the respective institution or organisation must inform the local public health authority (Gesundheitsamt) without undue delay. Pursuant to § 20a(5) third sentence IfSG, the public health authority can then issue an order banning the persons concerned from entering the relevant institutions and organisations or from working there.

Anyone who starts working at the institutions or organisations listed in § 20a IfSG from 16 March 2022 onwards must submit the required proof before commencing their tasks. Otherwise, they are not permitted to be employed by such institutions or organisations, nor may they perform any tasks there. Non-compliance with a number of the rules contained in § 20a IfSG is punishable by fine (cf. § 73(1a) nos. 7e to 7h IfSG). § 20a IfSG and the provisions governing fines cease to have effect on 1 January 2023.

§ 20a(1) first sentence and § 20a(2) first sentence IfSG in the version of 10 December 2021 defined the terms vaccination, recovery and proof of vaccination or recovery by making reference to § 2 nos. 2 to 5 of the COVID-19 Ordinance on Exemptions from Protective Measures (COVID-19-Schutzmaßnahmen-Ausnahmenverordnung) in the version in force at the relevant time. The Ordinance in turn specified the requirements by making reference to the websites of the Paul Ehrlich Institute and the Robert Koch Institute. After the constitutional complaint was lodged, the legislator amended § 20a(1) first sentence and § 20a(2) first sentence IfSG with effect from 19 March 2022. The requirements concerning the proof of vaccination or recovery to be submitted are now set out in the newly inserted § 22a(1) and (2) IfSG. In particular, this provision specifies the vaccines that can be used and the number of doses necessary to reach fully vaccinated status, as well as the duration of the recovered status granted to persons who have previously been infected with COVID-19.

Most of the complainants are involved in the health and care sectors. Several complainants challenge the provisions in question in their capacity as institutions or organisations in the health and care sectors. Other complainants challenge the fact that they cannot continue treatment administered by doctors, dentists or other medical service providers who have not been vaccinated.

With their constitutional complaint, the complainants directly challenge § 20a, § 22a and § 73(1a) nos. 7e to 7h IfSG, asserting that various fundamental rights and rights equivalent to fundamental rights have been violated.

Key considerations of the Senate:

A. The constitutional complaint is inadmissible in part. Several complainants failed to sufficiently demonstrate that the challenged provisions may have violated their own fundamental rights. Insofar as the complainants challenge the constitutionality of § 20a(1) first sentence and § 20a(2) first sentence IfSG in the version of 10 December 2021, the complainants do not continue to have a recognised legal interest in bringing proceedings (Rechtsschutzinteresse). This is because the provisions no longer have legal effects vis-à-vis the complainants.

B. Insofar as the constitutional complaint was lodged in an admissible manner, it is unsuccessful on the merits.

I. The obligation to provide proof of vaccination or recovery set out in § 20a IfSG interferes with the fundamental right to physical integrity, which is protected by Art. 2(2) first sentence GG. However, this interference is justified under constitutional law.

1. The guarantee of Art. 2(2) first sentence GG is curtailed by the obligation to provide proof, especially proof of vaccination, imposed on staff of certain institutions and organisations. As a defensive right against state interference, Art. 2(2) first sentence GG in principle protects the individual against state measures that result in impairments of physical integrity and the related right to self-determination, including where these impairments are merely an indirect effect of the measures. In particular, this may be the case if a law leads to the exercise of a fundamental freedom being adversely affected, with the aim of discouraging the exercise of this fundamental freedom.

In this sense, the interference in question is a targeted indirect interference with physical integrity. It is true that before being vaccinated against COVID-19, persons have to give their consent after a medical consultation. However, where persons decide not to be vaccinated, this entails negative consequences. Therefore, the decision on whether to get vaccinated, which as such should be taken on a self-determined basis, is governed by external constraints in both factual and legal terms. Persons who do not want to be vaccinated but wish to continue their work must expect that proof of vaccination will be demanded, with non-compliance punishable by fine, and, if the required proof is not provided, they must expect to be banned from entering the institutions and organisations set out in § 20a IfSG or from working there. The only alternatives available to such persons are to give up their occupation altogether, change their workplace, or at least change the particular job they do there.

2. The interference with the right to physical integrity is justified under constitutional law.

a) In aiming to protect vulnerable groups from infection with SARS-CoV-2, the legislator pursues a legitimate purpose. While most people do not fall severely ill when they contract COVID-19, some people have a higher risk of severe illness or even death because of their general health and/or their age. Older and immunocompromised persons in particular also face a higher risk of contracting the virus as vaccination is less effective to them. The legislator therefore assumed that there is considerable danger to important legal interests, which requires legislative action. This assumption is based on sufficiently robust findings. At the time the law was adopted, the legislator could assume that the pandemic was worsening, entailing a particular risk for older people and people with pre-existing conditions. The assumption that these vulnerable groups are at particular risk is still tenable.

b) The obligation to provide proof of vaccination against COVID-19 is suitable under constitutional law. The legislator could assume that the obligation to provide proof of vaccination or recovery imposed on the entire staff of certain institutions and organisations can contribute to protecting the life and health of vulnerable groups. At the time the law was adopted, a significant majority of scientists assumed that vaccinated and recovered persons were less likely to get infected with SARS-CoV-2 and were therefore less likely to transmit the virus. It was also assumed that a vaccinated person was less infectious and transmitted the virus for a shorter period than an unvaccinated person. According to the scientific organisations heard as expert third parties in the present proceedings, the further development of the pandemic and the spread of the Omicron variant did not render the legislator’s suitability prognosis any less tenable. The scientific organisations heard largely agree that vaccination remains effective to a relevant degree, although the effect is reduced compared to previous variants.

c) Moreover, the obligation to provide proof of vaccination is necessary to protect vulnerable groups. The legislator had a wide margin of assessment in this respect, given that the pandemic is characterised by its dangerous and unpredictable nature, making for a complex situation. Based on the information about the transmissibility of the virus and the possibilities for curbing its spread that was available at the time the law was adopted, it is not objectionable under constitutional law that the legislator assumed that no other means were available that would certainly be equally effective but interfere less with fundamental rights.

d) Measured against the information available when the law was adopted, which is the decisive point in time for the review of constitutionality, the obligation to provide proof of vaccination is proportionate in the strict sense (appropriate). In this respect, the legislator had to take into account that the vaccinations required to comply with the obligation to provide proof amount to a considerable interference with physical integrity. That being said, it must also be taken into account that § 20a IfSG does not give rise to a vaccine mandate that can be enforced by the state; rather, the provision ultimately leaves it up to the persons working in the institutions and organisations in question to decide whether to provide the required proof. However, affected persons are de facto faced with a choice between giving up their occupation or consenting to impairments of their physical integrity. In this respect, the occupational freedom of persons working in the health and care sectors is generally also affected.

Yet the interference with physical integrity must be weighed against other exceptionally high-ranking constitutional interests. It is incumbent upon the legislator to fulfil its duties of protection, which likewise follow from Art. 2(2) first sentence GG, by protecting the life and physical integrity of the individual. The legislator’s duties of protection vis-à-vis vulnerable people were amplified at the start of December 2021. Following a brief improvement of the situation, the pandemic at that time entered the fourth wave, which was again marked by particular transmissibility and high case numbers, with an increased probability of contracting the virus. This was associated with a high risk for vulnerable groups in particular. The state duties of protection vis-à-vis vulnerable people were of especially critical importance at that time given that, in addition to the higher risk of falling severely ill or even dying from COVID-19, vulnerable people are not, or only to a limited extent, able to reduce their risk of contracting the virus by getting vaccinated.

The legislative decision to give precedence to the protection of vulnerable groups over the individual’s ability to reach an entirely free vaccination decision is based on a balancing of interests that is not objectionable under constitutional law. Despite the great intensity of the interference resulting from § 20a IfSG, the fundamental rights interests of the complainants who work in the health and care sectors ultimately have to stand back. When balancing the conflicting fundamental rights interests, it must be taken into account that the legislator was clearly guided by the consideration of not wishing to intensify the interference in a biased manner while only focusing on the protection of vulnerable groups. The legislator did not itself make the decision on vaccination for affected persons. Insofar as the intensity of the interference resulting from the obligation to provide proof of vaccination is primarily determined by the type, extent and probability of vaccination risks, § 20a IfSG was based on a tenable legislative decision with regard to the aspect of vaccine safety that was supported by reliable facts. The health risks imposed on the persons addressed by the law are not unreasonable (unzumutbar) under constitutional law to such a degree that they can no longer be justified even when there are acute risks for vulnerable people. Serious side effects or consequences beyond the vaccine-induced immune response are very rare. Moreover, such effects are continually monitored and evaluated, in particular by the Paul Ehrlich Institute, with the Standing Committee on Vaccination (Ständige Impfkommission) adapting recommended vaccines accordingly.

Another important factor in the balancing of interests is the particularly acute need for protection of those groups the legislator intends to protect. Vulnerable people can often neither protect themselves through vaccinations nor avoid coming into contact with staff working in the health and care sectors as they usually rely on their services. Ultimately, the very low probability of serious consequences resulting from vaccination must be weighed against the significantly higher probability of harm to the life and limb of vulnerable persons.

The course the pandemic has taken since the law was adopted does not merit a different assessment. No new developments have occurred and no better understanding of the situation has emerged that would be capable of rebutting the initial assumptions made by the legislator. It is still tenable to assume that vaccinations confer protection against infection, including the currently dominant Omicron variant – albeit protection that wanes over time. The risks posed by the pandemic have not been reduced to an extent that would lead to a significantly lower need for protection of vulnerable groups, and thus require a balancing of interests that would accord lesser importance to their constitutional interests. The scientific organisations heard in the present proceedings largely agree that, even though the dominant Omicron variant on average causes less severe illness, the composition of vulnerable groups and the generally greater risk they face have not changed.

II. The complainants’ occupational freedom under Art. 12(1) GG has not been violated.

1. Insofar as the obligation to provide proof of vaccination for staff in the health and care sectors is designed as a prerequisite for practising one’s occupation, Art. 12(1) GG does not afford further-reaching protection than the fundamental right under Art. 2(2) first sentence GG, which protects highly personal legal interests.

2. It is true that § 20a(5) third sentence IfSG, which authorises the banning of individuals from entering the relevant institutions and organisations or from working there, gives rise to a separate interference with occupational freedom. However, this interference is justified to protect vulnerable groups.

When the purpose of § 20a(5) third sentence IfSG is balanced against the severity of the interference, the provision must be considered appropriate. The negative consequences resulting from the provision differ according to the type of work performed. The imposition of a ban on entering the relevant institutions and organisations or on working there places a particular burden on persons who, if they changed their workplace, would still be subject to the requirement of being vaccinated or recovered and could only avoid this requirement by practising a different occupation for which they have no training. This concerns nursing staff, doctors, psychotherapists, medical assistants, etc. By contrast, administrative, cleaning and kitchen staff may be required to be vaccinated or have recovered at their current workplace. However, these groups can continue to practise their occupation if they change their workplace, as long as they do not work for an institution or organisation covered by § 20a IfSG.

The law’s purpose is to protect vulnerable groups from falling severely ill with, or even dying from, COVID-19; this is an especially significant interest that is protected by the Constitution. The different burdens imposed on several professional groups thus also reflect the significance of vaccination or recovery for achieving the purpose pursued. Given the nature of their work, the staff in the health and care sectors that are especially affected by the law are regularly in intense and close contact with vulnerable persons, which makes the increased transmission risk posed by staff who have not been vaccinated and have not recovered more relevant and leads to a considerable increase in the need for protection of vulnerable persons. By contrast, the administrative, cleaning and kitchen staff concerned usually have no or only brief direct contacts with vulnerable persons, and therefore usually have only indirect dealings with the persons that must be protected, for example through the joint use of facilities or via medical or other care and nursing staff. In this respect, it must also be taken into account that the staff in the health and care sectors that are especially affected by the law have a particular responsibility vis-à-vis the persons treated and cared for by them.