The Zurich University’s appeals committee has come to the conclusion that it is none of an employer’s business whether its employees are vaccinated or not.
In the appeal, the two lecturers pointed out that the Epidemics Act does allow a certificate obligation, but only if it does not lead to an indirect vaccination obligation.
Can a company know the vaccination status of its employees? The appeals committee of the Zurich universities has decided that this data can only be disclosed voluntarily by those affected.
In September 2021, the ZHAW introduced a Covid certificate requirement for courses and indoors at the university. For employees who could not produce a certificate, the costs for the tests were covered. However, this meant that the employer knew who was not vaccinated against Covid. Because the money had to be reclaimed individually via expenses. Two professors did not want to accept this: they appealed against the measure a month after it was introduced.
The professors criticized that the obligation to be tested regularly violated their personal freedom. In the appeal, they also pointed out that the Epidemics Act does allow a certificate obligation, but only if it does not lead to an indirect vaccination obligation. The introduction of the obligation is not proportionate, and since vaccinated and recovered people could also infect others, the Covid certificate obligation is not suitable for reducing infections. They added that the average age at the university is lower than, for example, in public transport and thus also the probability of severe Covid courses. That makes the obligation to obtain a certificate obsolete.
Appeals commission sees no hidden vaccination requirement
The appeals committee now states that the organizational challenge for the affected unvaccinated people to test themselves three times a week is great. However, she does not see any hidden obligation to vaccinate in the ZHAW’s approach, since the students and employees would have had the choice between regular tests and vaccination.
All in all, the Appeals Committee considers the measures taken in September 2021 to be proportionate.
However, the commission has objections to the personal data: the test costs for the lecturers were fully covered by the ZHAW from October 2021. The expenses could be reimbursed under the existing regulation. The two professors saw this as a violation of the cantonal law on information and data protection (IDG) and the right to informal self-determination.
This is because the employer became aware of their vaccination status through the reclaim. There is no formal legal basis for processing information on immunity status. According to the complainants, there is also an infringement of the scope of protection of Article 13 of the Federal Constitution, according to which comprehensive protection of the handling of personal data must be guaranteed.
The ZHAW noted that the reimbursement was voluntary and that the complainants thereby consented to the processing of the personal data.
The appeals commission wrote in its judgment that the vaccination status is data that is particularly worthy of protection. She refers to a judgment by the Zurich Administrative Court in December 2021, according to which consent can only be assumed if it is given voluntarily. If the persons concerned have no reasonable alternative course of action, the consent is not considered voluntary. After all, those affected would have had to “accept not inconsiderable financial expenses” in this case.
The Appeals Committee comes to the conclusion that the ZHAW has violated data protection because data that is particularly worthy of protection was processed unnecessarily. According to the verdict, there was definitely a way to test the lecturers without sensitive personal data reaching the employer. The test center could have billed the ZHAW directly for the service without listing all the testing employees by name.
“The disclosure of health data that is particularly worthy of protection – such as a person’s vaccination status – to the employer is to be handled with great restraint according to case law,” the judgment reads. Even a medical officer of the employer may only pass on relevant information if the employee has released him from the secret.
The appeal was partially approved. The professors receive compensation of CHF 1,000.
Appellants react disappointed to the decision
However, the joy of the competitors about the partial victory is restrained. Markus Weber Sutter, professor at the School of Engineering, writes in a statement: “The meager substantial balance sheet mentioned shows (. . .) how far the concept of right or wrong and the standard for justified or unjustified have been displaced by this crisis. »
The second complainant, Martin Winkler, also a professor at the School of Engineering, is disappointed that, in their view, the appeals committee did not comment on the most pressing issues, such as whether the measures were appropriate to prevent infections.
They wanted to make a mark. Even in times of crisis, all parts of society should be heard, including the voices of minorities – in this case, the people who advocate free access to universities, according to Winkler. They would not have simply wanted to accept the curtailment of their own fundamental rights.
Weber Sutter agrees: It was important to both of you to stand up for your beliefs, so you took the risk and appealed.
When asked, the ZHAW writes that the appeals committee has confirmed that the introduction of the certificate requirement was lawful. We take note of the assessment of the compensation issue. If a certificate becomes mandatory again at the university, then they want to carefully review the options again and choose an appropriate solution.