Can universities impose mandatory vaccination?

The winter semester 20/21 is already the second semester in which many universities have suspended face-to-face courses and are reverting to online teaching. In the context of compulsory vaccination, which has been raised in many places, many university leaderships now ask themselves if they can impose mandatory vaccination on their members. By making vaccination compulsory at universities, which function as central actors of science, a return to the "normal state" of attendance could be achieved in perspective, and the restoration of the functioning of science, research, and teaching could be aimed at.

The following article examines this topic from a purely legal point of view, based on German law (while many aspects will be applicable for other jurisdictions as well). Political elements are left out.

The fundamental rights of public universities

Compulsory vaccination under discussion is always a sensitive intervention in terms of fundamental rights, in which the weighing of constitutional goods is the focus and an indispensable subject for debate.

The members of the universities experience an encroachment on their fundamental right of physical integrity, Art. 2 II p.1 Grundgesetz (German constitution, following "GG"), as well as on the general freedom of action, Art. 2 I GG, and the right to informational self-determination, Art. 2 I GG in conjunction with Art. 1 I GG. Art. 1 I GG.

State universities are sovereign entities, independent legal entities with corporate autonomy. This position results in a direct obligation to proportionately uphold and bind fundamental rights. Simultaneously, through their members, higher education institutions are also the addressees of the freedom of science standardized in Article 5 III GG. Universities are thus both obliged and entitled to fundamental rights.

If attendance events and examinations are canceled and if compulsory vaccination for members of higher education institutions would be a way of circumventing this, the fundamental rights of the members of the higher education institution and the institutional functioning of higher education institutions derived from Article 5 III of the German Constitution are therefore in conflict. They must be reconciled using practical concordance.

Legal basis required

A legal basis would certainly be required for such an order, if only because of the idea of the essentiality theory. According to this, all decisions essential to the common good must be made by the parliamentary legislature. Compulsory vaccination for members of a university is such a critical decision.

According to Article 30 of the German Constitution, the legislative competence concerning higher education institutions is the Federal German States' responsibility. Within the framework of concurrent legislation, the Federal Government has only assumed competence for higher education admissions and degrees under Article 74 I No. 33 of the German Constitution.

The German Federal States have enacted higher education acts following their competence. Within these, the respective higher education institutions' objectives, tasks, and working methods are defined.

If one considers a vaccination obligation for members of higher education institutions intending to restore or maintain science, research, and teaching, this would have to be passed by a German Federal States parliamentary act.

A compulsory vaccination by the federal government within the Infection Protection Act - as happened last year with the adoption of the measles vaccination requirement, § 20 VIII IfsG - would only be possible with the purpose of "public health protection." In the present case, this purpose is not compatible with the universities' remit and the invocation of Article 5 III of the German Constitution. It, therefore, cannot be considered as a legal basis.

Legally, it would depend on the subjects studied

When discussing compulsory vaccination for members of higher education institutions, one must always bear in mind the subjects and areas in which attendance events and examinations are indispensable for effective teaching, research, and science. Indeed, there are also subjects whose successful education is not necessarily linked to attendance events.

However, the necessity of classroom teaching becomes apparent in the case of degree programs that have a high practical component. Natural sciences such as pharmacy or medicine come to mind here. Within these study regulations, working in laboratories is not infrequently even a prerequisite for a successful degree. But other subjects with a practical focus, such as musicology or sports science, are also dependent on attending events and the associated attendance examinations. Such studies without auditions or practical tests may not be fully functional teaching. It is not yet fully foreseeable to what extent the loss of such examination services will hinder education and pose new challenges. However, compulsory vaccination for students and lecturers would undoubtedly search for alternative forms of examinations and teaching superfluous, as attendance courses could then be resumed without restrictions.

Within the framework of a constitutional consideration, the necessity of face-to-face courses is, therefore, a necessary criterion for differentiation. Vaccination as a prerequisite for members to enter university buildings or get a place in student halls of residence is probably not justifiable with the purpose of functioning science, teaching, and research.

If one is talking about compulsory vaccination to restore or preserve the fundamental freedom of science and scholarship guaranteed by Article 5 III of the German Constitution, the circle of those addressed must be adjusted accordingly. Professionals who do not teach subjects whose successful study necessarily requires attendance at lectures would not be subject to compulsory vaccination. The same applies to other members without corresponding points of contact, such as students.

From this point of view, an encroachment of the general fundamental right to equality from Article 3 I GG must also be considered. However, unequal treatment within a group of "members of the university" can be justified concerning what has been said.

But the individual groups would also matter

In addition to the necessary differentiation and consideration criteria already mentioned, attention must certainly also be paid to the fact that the individual groups of members have different relationships to the higher education institution. While students at universities regularly do not have any special status vis-à-vis the university and can invoke their fundamental rights without restriction, the situation could be different for civil servants and employees in a public-law employment relationship.

It is consistent case law that civil servants can also invoke their fundamental rights vis-à-vis their employer. In particular, a vaccination would affect the specific employment relationship and the private sphere outside the special status relationship.

When discussing the implementation of compulsory vaccination at universities, it is essential to consider the criteria and differentiations already mentioned and exceptions. For example, mandatory immunization cannot be adopted without exceptions. In the case of persons for whom vaccination is not possible due to a medical contraindication, compulsory vaccination may not apply.

There is also the question of whether there must be special legal treatment about the Covid 19 pandemic concerning recovering members of the university.

Conclusion

In conclusion, it can be said that an obligation to vaccinate members of higher education institutions is a comprehensive and complex legal issue due to the hybrid position of higher education institutions. Compulsory vaccination does not appear to be entirely out of the question. Still, it would be associated with many subsequent legal questions - not to mention the problems of practical feasibility and justifiability in terms of (higher) education policy.