Corona: What is permissible at the moment according to data protection?


Important: This information is applicable for Germany specifically. It might differ in other countries.

The Corona pandemic continues to have Germany and the world in its grip. After a lull during the summer, the trend has changed again and various measures are being taken or tightened. These also affect the work sphere. Employees would normally not be asked to disclose health data. In the current situation, however, many employers want to know specific information in order to better plan next steps: What the vaccination status is in their workforce.

At the moment, the current legal situation in Germany is as follows:

May the employer ask about vaccination or recovery status?

Yes – but the employee may refuse to answer. This is because this information is usually not mandatory in order to be able to provide the work performance owed. Good hygiene management also protects people and is a less intrusive measure. But there can be no rule without an exception:

  • Employees at medical facilities must answer the employer’s question about their vaccination/recovery status (for example, in hospitals, nursing facilities, outpatient care services), according to §§ 23a, 23 para 3 of the German Infectious Disease Law (IfSG).
  • According to media reports, the circle will be expanded. Accordingly, employees in other sensitive workplaces could also be required to provide information, for example in childcare, in community accommodations or in services requiring close approximation to the body.

May the employer request a Corona rapid test?

As a rule, yes:

  • In some federal states, the employer is even obligated to do so (e.g. in the case of employees returning from vacation in North-Rhine Westphalia and Saxony).
  • In other cases, we believe the employer has legitimate interests in testing employees (for example, because of their responsibilities regarding the safety of the other employees and to maintain and plan operations). Employees do have the option of objecting to this if they can provide specific reasons for doing so. However, the employer is then entitled to prohibit access to its premises in case of doubt.

Employees can circumvent such a test by voluntarily providing information about their vaccination or recovery.

Is the employer allowed to take a temperature at the workplace entrance?

No, this is generally not permitted. An elevated body temperature does not provide reliable information about a Corona infection. Therefore, this data collection is not appropriate for containing further infections. If the employer nevertheless wishes to carry out such a measurement as part of their specific protection concept, it may only be checked whether the temperature is within the normal range or not. The specific body temperature must not be noted/stored.

Can the employer require a Corona vaccination?

No, they may not. There is no obligation to vaccinate, either to the employer or to government agencies.

As you know, there continues to be a lot of movement on the topic of Corona measures. Therefore, we may have different answers for you on the above questions at a later date.

Summary: Currently, employers are allowed to require corona rapid tests from their employees before they enter their workplace. However, inquiring about vaccination or recovery status is only permitted on a voluntary basis (unless specifically required, e.g. for hospital staff).

As always, if you have specific questions about these issues, please feel free to contact us.