German policy makers are considering a law change which would prevent the private sector from asking customers to either show proof of vaccination against Covid-19, or be denied entry.
With airlines, restaurants and leisure facilities such as cinemas signalling they may only allow access to customers who have been vaccinated, legal experts have expressed their concern that current laws are inadequate to protect those not vaccinated, from discrimination.
“We are looking to see how we can legally prevent the discriminatory treatment in the private sector of those who have not been vaccinated against those who have,” Johannes Fechner, legal policy spokesman for the Social Democrats told Die Welt.
He warned that if airlines and restaurants were allowed to go ahead and block entry to those who were not vaccinated, “it would lead to societal division. It would be intolerable,” he said.
The announcement by the Australian air carrier Qantas in November that in future air travellers would have to prove they had been vaccinated against Covid-19 in order to board its flights, has become something of a benchmark reference for businesses in Germany looking at how they can start to emerge from the confines of the pandemic.
Representatives of the entertainment industry have led the calls for a coronavirus vaccine pass. Dirk Bamberger, vice president of the German Association of Discotheques and Dance Halls, said such passes “could be conceivable during a transition phase when deciding who gains entry.” Sport clubs, restaurants and cafés have also been part of the debate, with owners arguing that a passport would be more efficient than demanding proof of a negative test result.
But Ingrid Hartges, the head of the German Hotel and Catering Association (Dehoga) said it was only possible to discuss a return to normality when the majority of people had been vaccinated. “Until everyone who wants to has had the chance to be vaccinated, it’s to early to talk about any possible advantages for those who have been vaccinated,” she said.
Germany began its nationwide vaccination programme three days ago. By Tuesday morning almost 42,000 people had received the jab. Priority is being given to those 80 years old and over and those in need of care.
According to estimates by Germany’s health ministry, whilst the bulk of those who choose to be vaccinated can expect to have received the jab in the summer, it is expected to take up to a year to reach everyone who wants one. Lawmakers have strictly rejected making the vaccination programme mandatory, out of fear it would not help its acceptance.
Volker Ullrich, legal policy expert for the conservative Christian Social Union, said current law prevented discrimination in public places, including public transport. “But there is a legal loophole in the private sector, which we must address,” he said.
The German Foundation for Patient Protection warned that the loophole meant that care facilities could choose to turn away both in- and outpatients if they had not been vaccinated. Its chairman, Eugen Brysch said: “Those in need of care cannot be discriminated against if they are not vaccinated”.
Whilst a significant number of Germans – just under 50 per cent – have persistently voiced their scepticism about being vaccinated, ethics experts have warned against any enforcement of the policy. But evidence shows acceptance increasing the closer the prospect of being vaccinated comes.
Fechner has suggested an appendix to the German Civil Code which would clarify the rules governing general terms and conditions of business (AGBs). “It could be established that AGBs are invalid if for example, they attach the condition of only transporting people who have an immunisation status,” he said.
Health minister Jens Spahn and interior minister Horst Seehofer have repeatedly spoken out against giving a privileged status, referred to in Britain as a ‘Freedom Pass’, to those who have been vaccinated.
“Many are waiting out of a sense of solidarity whilst those who need to be vaccinated first receive it. And those who have not yet been vaccinated will expect solidarity from those who have been vaccinated,” Spahn told the Funke-Mediengruppe. “No one should demand special rights until everyone has been vaccinated.”
Thorsten Kingreen, a professor of constitutional law from Regensburg said it would be highly problematic to argue that those who were not vaccinated only had themselves to blame “particularly as long as there are not enough vaccine doses to go round.” There is also the issue of those who cannot be vaccinated for medical reasons.
Epidemiologists have warned that while evidence as to whether those who have been vaccinated are still capable of spreading the virus is still outstanding, it is premature to talk of how to treat the vaccinated and the unvaccinated.
The German biotechnology company BioNTech, which produced the first vaccine, is expecting the results of its study on the subject in February.
