Everything is just waiting for the vaccine from the pharmaceutical companies Biontech and Pfizer to be approved by the European Medicines Agency (EMA) and the EU Commission, which should take place at the beginning of next week.
Federal Health Minister Jens Spahn (CDU) presented the vaccination regulation on Friday in Berlin, which regulates, among other things, who is offered a vaccination and when. “We cannot make this offer to everyone at the same time at the beginning of the vaccination. because there is too little vaccine, ”said Spahn. Initially, he assumes that 11 to 13 million vaccine doses will be available in the first quarter.
Who will be vaccinated first?
In principle, anyone who resides in Germany, who stays here for a long time or regularly, as well as people who work in nursing care in certain health care facilities in Germany, can be vaccinated, even if they do not live here. Since there will not be enough vaccine for everyone, especially at the beginning, according to Spahn’s plan, the people who should be vaccinated first are classified into three groups.
It starts with people over 80, the very old, those in need of care and those who look after them. The first category of “highest priority” therefore also includes medical staff in intensive care units, in emergency rooms, in the ambulance service and staff in outpatient care.
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The second category therefore includes people aged 70 and over, people with dementia, people with trisomy 21 and transplant patients, as well as residents of homeless or asylum seekers accommodation and close contact persons of those in need of care.
The third category includes people over 60, the chronically ill, people “in a particularly relevant position in government institutions” as well as educators, teachers and employees in retail.
Why is vaccination prioritization not regulated by law?
Spahn has presented an ordinance on the distribution of the vaccine, i.e. a regulation from the executive branch. However, essential decisions that affect fundamental rights must be based on a law, i.e. a decision of the legislature. Accordingly, the FDP has submitted a draft, and the Greens also believe that the Bundestag should vote on it.
They get support from Parliament’s Scientific Service: “The prevailing view that the prioritization of certain population groups for access to vaccines requires a formal law that regulates at least the essential criteria for the distribution of a scarce vaccine must be approved,” it says in one Assessment.
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The reason for this is the central importance of the vaccine for life and health and the monopoly of the state to decide on the distribution. However, the government can also rely on a law in its course of action, the recently enacted “Third Civil Protection Act”, which provides for the enactment of ordinances for the distribution of vaccines.
The advantage of such a regulation is that it can be changed or adapted at short notice, depending on the course of the pandemic. In the foreseeable future, courts will have to decide whether the legal bases differentiate sufficiently with regard to the importance of prioritization.
What is the economy demanding with regard to vaccinations?
In the US, large companies are aggressively promoting that their employees be vaccinated as quickly as possible. Amazon has asked the US government in a letter to give preference to particularly important employees such as employees in warehouses and data centers for vaccination; they could not work from home. The US National Retail Federation had already submitted a similar request.
In Germany, too, the federal and state vaccination plans are not ambitious enough for many companies. An alliance of companies has been founded in Bremen that offers the authorities the opportunity to significantly increase the number of vaccinations. “According to the health authorities, 1000 to 1500 people are to be vaccinated there every day,” said Detlef Pauls, President of the Dehoga Bremen Hotel and Restaurant Association, the Tagesspiegel. “With 500,000 inhabitants, that takes far too long.”
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The alliance wants to increase the number to 15,000 vaccinations per day. To this end, employees who are currently on short-time work should help set up and organize further vaccination centers. “In Berlin there is not yet a constituted alliance like in Bremen”, announced the Berlin Chamber of Commerce and Industry on request. Berlin companies have been called on to support the vaccination centers.
Business is also open to having the vaccinations carried out by company doctors or to providing the federal government with logistical help.
Can companies help at all?
In the health sector, however, there are doubts that help from the economy is necessary. With a view to the medical infrastructure in Germany, there is no bottleneck, but at most with the vaccine itself, according to experts. There are only problems as long as the Biontech vaccine is the only one available because it has to be stored at minus 80 degrees Celsius.
The industry has doubts that private initiatives can create the necessary infrastructure. As soon as the Moderna vaccine is available, which does not need to be stored so cool, the vaccine can also be injected into doctors’ offices. According to the National Association of Statutory Health Insurance Physicians, the vaccination could then be carried out nationwide in five months.
Are hotels, restaurants or event organizers allowed to give preference to vaccinated customers?
The Federal Ministry of Justice has a clear position on this. “In general, it is true that private providers, such as owners of private catering, accommodation and event businesses, can be free within the scope of the freedom of contract to refuse to conclude contracts or to refuse access to their properties,” said a spokesman.
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There is competition among private providers so that rejected customers can switch to another provider. Theoretically, this freedom is only limited by anti-discrimination regulations under the General Equal Treatment Act (AGG). A distinction between vaccinated and unvaccinated is not prohibited therein.
What is the situation like for airlines and transport companies?
The national Australian airline Quantas has already made it clear: As soon as a vaccine is available, the airline’s terms and conditions will be adjusted. At least passengers on intercontinental connections would then have to be vaccinated.
With regard to the conclusion of transport contracts, the Federal Ministry of Justice points out that there are some legal obligations to contract. This is the name given to a company’s obligation to have to conclude a contract with a customer.
Such rules exist in the General Railway Act and in the Aviation Act, among others. However, this does not mean that it must be inadmissible to turn away travelers without a vaccination certificate. In some cases, the companies could invoke exceptional provisions. National entry regulations will also play an important role.
How is data protection guaranteed?
Whether a person has been vaccinated or not is one of the particularly protected health data under the General Data Protection Regulation (GDPR). Basically, data subjects must then “voluntarily” consent to data processing (and collection) and it must be closely related to the performance of the contract.
As a result, it should come down to the fact that the data processing is all the more permissible as the risk of infection arises or is favored by the fulfillment of the contract. Accordingly, airlines or bus travel providers will probably collect such health data, online delivery services such as Amazon will not.