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BAG: Employer not liable for harm caused by vaccine

May 2018

Employers who have flu vaccines administered within their company are not liable for any harm that might occur as a result of the vaccine. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in a recent ruling.

During the winter, a lot of people get vaccinated against the flu. Of course, employers also have an interest in flu vaccination as a means of preventing an epidemic within their respective firms, which is why many employers offer employees the option of receiving workplace flu vaccinations. The workers are then able to decide for themselves whether or not they wish to accept this offer. We at the commercial law firm GRP Rainer Rechtsanwälte note that this is why said employers are not liable for any harm caused by the vaccine. This comes from a judgment of the Bundesarbeitsgericht from December 21, 2017 (Az.: 8 AZR 853/16).

In the instant case, a freelance company doctor had called for the employees of a cardiac center to receive flu vaccinations on clinic premises. The employer bore the costs associated with the vaccinations. One employee who responded to this call was an administrative member of staff who had no contact with the patients. She subsequently experienced various lasting impairments relating to her cervical spine, for which she blamed the vaccine. She claimed that while the vaccine had been correctly administered, she had not been properly informed about the risks associated with the flu vaccine. She went on to say that had she been properly informed, she would not have had the vaccine administered. She therefore raised an action for damages for pain and suffering on account of a failure to fulfil the relevant obligation to inform. However, the action was not directed at the doctor but rather the employer.

Like the courts of lower instance before it, the BAG dismissed the claim. It held that no treatment contract had come into existence between the employer and the plaintiff that would have given rise to a duty to inform on the part of the employer. The BAG also found that the existing employment relationship did not give rise to a duty to inform, noting that a treatment contract had only come into existence with the doctor.

When it comes to issues pertaining to the workplace, lawyers who are experienced in the field of employment law can offer advice.

https://www.grprainer.com/en/legal-advice/employment-law.html

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