Author: André Lerch
The Appeals Commission of the Zurich Universities recently had to deal with the question whether it is permissible for an employer to find out the employee’s vaccination status.
The case was based on the following facts: By decision of 10 September 2021, the management of the Zurich University of Applied Sciences (“ZHAW”) stated that all persons seeking access to the university needed a valid Covid certificate. For employees who were not vaccinated and needed to get tested in order to receive a certificate, the University offered to cover the costs of the testing. Some professors did not agree with this procedure as it allowed the University to gain knowledge about which employees were not vaccinated as only those needed to ask for reimbursement of testing costs.
The Appeals Commission found the University’s procedure to be unlawful and in particular not in line with data protection law. It ordered the University to reorganise the proceeding of the reimbursement in a way that no conclusions could be drawn as to the employees’ vaccination status.
This ruling is in line with most Swiss scholars view that there is no general right of the employer to ask about a vaccination status of an employee or use other means to find out about the status. The general view is that such a question is only permissible where the protection of third parties can only be ensured with vaccination, for example in the case of nursing staff or if the vaccination status may have an impact on the performance of the employment relationship, such as in the case of pilots and other internationally active professionals.
The reason for the restrictions is data protection: According to Art. 328b of the Swiss Code of Obligations, the employer may only process data about the employee insofar as such data concern the employee’s suitability for his job or are necessary for the performance of the employment contract.