AstraZeneca, Pfizer, Moderna, Johnson & Johnson, Sputnik, CoronaVac…: already dominate our lives, the media and our conversations. On the one hand their (few-fortunately) deniers and on the other all those who are eager to be vaccinated or have already been vaccinated. In the middle are those who are still worried. It seems normal that the debate on compulsory vaccination of employees has begun. And it is an intense and, at the same time, global debate. Let us attempt a brief, sober, approach to the subject.
The opening of the debate in our country
The debate on the imposition of the obligation of vaccination started, in fact-without “fanfare”, more than a year ago in our country (: Law 4675/2020, Government Gazette A 54 / 11.3.20-which provided for the possibility of imposition of the obligation to be vaccinated “to prevent the spread of disease”). Ignoring this fact, however, the prime minister brought it back it in a very recent interview. Among other things, he mentioned:
“… I think that the debate on the mandatory vaccination of certain categories of employees, especially those employed in the health sector, must be opened. “I do not want to have this discussion now, but I believe that in September-October … we should discuss very seriously and talk to the other parties about the mandatory vaccination of some categories, especially in the health sector”.
“… We have also set up a new bioethics committee… with scientists of the highest caliber … to give an opinion… on the ethical dimension of compulsory vaccination of categories of employees… especially of health professionals”
He clarified, however, to avoid misunderstandings, that: “… No employer can fire an employee in a private company… because the employee will choose not to get the vaccine”.
The legal framework in our country
The obligation to get vaccinated
The issue of mandatory vaccination against the Covid-19 infection is provided in Article 4 § 3 par. iii.b. Law 4675/2020: “b) In cases of occurrence of risk of transmission of communicable disease, which may have serious effects on public health, by decision of the Minister of Health, after the opinion of the National Committee of Public Health Experts, mandatory vaccination can be imposed in order to prevent spread of the disease. The above decision defines the group of the population for which the vaccination with a fixed vaccine becomes mandatory, the area of the imposition of the mandatory vaccination, the period of validity of the mandatory vaccination, which must always be decided as an emergency and temporary protection of public health for a specific group of the population, the regulation of the vaccination process and any other relevant details”.
No decision of the Minister of Health has been issued yet, determining the relevant vaccination as mandatory. However, based on the above-mentioned prime ministerial declarations, such a thing is not to happen before Autumn.
The obligation to protect the health of employees (and not only…)
Employers are obliged to take care of the health of their employees. It is an obligation of theirs that derives directly from the law (: “the employer is obliged to ensure the health and safety of employees…” -article 42 §1 law 3850/2010). At the same time, however, it is an ancillary obligation (resulting from good faith) to other employees.
And beyond the law: it is not without value to justify the dismissal, on the basis of moral values, of those who refuse to be vaccinated. When, in particular, we are talking about employees in structures that are sensitive by nature (eg hospitals or nursing homes) the answer seems easier.
However, one could reasonably adopt the position that employees who refuse to be vaccinated violate the ancillary obligation to protect the health of their colleagues. Much more of those who are called to care for (patients, the elderly, etc)
“Images” from the USA, Germany and Italy
USA: Of particular interest is the Directive of the Equal Employment Opportunity Commission of the United States dated 16.12.20. Employers, according to it, have the right to demand that their employees be vaccinated. However, they must exclude people who are prevented from being vaccinated, either for health reasons or for religious reasons. For the latter they must find ways of arranging their work (eg teleworking), in order to reduce any risks from non-vaccination. Unless the employer bears a significant burden (eg financial) from this arrangement.
Germany: From the first days of 2021, the Prime Minister of Bavaria, Marcus Zeder, advocated for the mandatory coronavirus vaccination for certain groups of employees. Indicatively, for the nursing staff in hospitals and nursing homes. His proposal provoked strong reactions. Among those opposing was the Minister of Labor, Mr. Hubertus Heil. The government, the opposition and the trade unionists were quickly added to the protesters. It seems that everyone started “casting stones” at him.
Italy: At the judicial level, however, Italy emerges as a leader. After all, it makes sense if we consider the blow it suffered by the pandemic. Nurses at two nursing homes in Veneto, Italy, refused to be vaccinated. The employer put them on compulsory paid leave. The nurses appealed to the Court to return to work. The court rejected their application. Central (and yet very interesting) reasoning for the “validation” of their compulsory leave, was the protection of employees themselves from the risk of contracting Covid-19 infection, due to their contact with patients and their visitors in the health structures.
The first terminations of employment contracts in our country
The first two terminations of employment contracts due to refusal of vaccination are already a fact in our country.
The first case concerns the termination of the employment contract of a physiotherapist, working in a nursing home in Ilia. The latter refused to get vaccinated. His employment contract was terminated due to his specific refusal, on the grounds of the need to protect the elderly in the nursing home.
The second termination of this nature concerns the employment contract of an employee in a charity in Crete. The specific employee, according to the relevant publications, asked for time in order to consider the possibility of vaccination. She was, also, eventually fired.
The contribution of existing case law
Issues related to compulsory vaccination have been addressed in recent decisions by both the Council of State and the ECtHR. The specific cases, however, concerned the refusal to vaccinate infants and the legality of the refusal to accept or enroll them in the nursery school or kindergarten, respectively. The reasoning and ruling, however, of the above decisions give us some first answers to the questions about the necessity or not of vaccination.
Decision No. 2387/2020 of the Council of State
Parents addressed the Council of State requesting the annulment of a decision of the Municipality of Drama for the removal of four unvaccinated infants from the nursery schools of the Municipality. The reason for the decision of the Municipality was the refusal of the parents of the infants to comply with the repeated instructions of the pediatrician of the kindergartens for the start of the vaccination program. The Council of State, with its decision no. 2387/2020, rejected the parents’ application. The Municipality was vindicated.
This decision provides guidelines in trying to find out whether or not vaccination is required in the workplace. Also, for the legality of the (consequent) termination of the employment contract in case of refusal of vaccination.
This is because, as it is accepted in this decision: “The measure of vaccination, in itself, constitutes a serious intervention in the free development of the personality and in the private life of the individual and in particular in their physical and mental integrity, but constitutionally tolerated, under the following conditions: (a) that it is provided for by specific legislation, fully adopting valid and substantiated scientific, medical and epidemiological findings in the relevant field; and (b) that vaccination is exempted in specific individual cases, for which it is contraindicated.’.
Of particular interest is the thought of this decision, according to which the refusal to vaccinate violates the principle of equality. Violation of the principle of equality occurs when a person claims not to have been vaccinated, claiming that “they are not at personal risk, as long as they live in a safe environment due to the fact that other persons in their environment have been vaccinated”.
ECtHR: The case of Vavřička and others v. Czech Republic
In the case of Vavřička and Others v. Czech Republic, the broad panel of the ECtHR (European Court of Human Rights) ruled that compulsory vaccination of children in the Czech Republic was in accordance with the European Convention on Human Rights (ECHR). Specifically, with its absolutely recent decision (of 8.4.21), it assessed that there is no violation of Article 8 of the ECtHR, which guarantees the right to respect private and family life.
As, in particular, the ECtHR points out, compulsory vaccination is in principle part of the protection and respect of privacy under Article 8 of the ECHR, as it constitutes a medical intervention without consent. In the present case, however, no compulsory vaccination took place. It assessed, however, that those who are legally responsible for infant vaccination and refuse to comply should face the consequences of their refusal. These consequences, in this case, consisted of the denial of access to infants to pre-school education as well as the imposition of a fine on a parent who refused to vaccinate their children.
This decision approaches the issue of compulsory vaccination from a different perspective. From the point of view of the legal consequences faced by the one who refuses the vaccination.
The ECtHR, examining, in the specific case, the purpose, the scope of application and the foreseen exceptions of the imposed measure, proceeded to a proportionality check. While acknowledging that the safety and efficacy of vaccines are not guaranteed, it ruled, however, that the consequences of vaccination refusal under Czech law are proportionate to the objective of protecting citizens from serious risks concerning public health.
As mentioned in the introduction, the debate about the obligation (or not) of vaccination in employees is both global and intense. And as time goes on it will become, for sure, more intense.
The issue concerns both businesses and employees. And, finally, all of us.
The legal framework in our country is already ready for the (conditional) imposition of mandatory vaccination. A ministerial decision is left to be issued. But based on the recent prime ministerial declarations, we should not expect it before Autumn. Until its issuance, however, employers are not entitled to terminate their employees’ employment contracts due to their refusal to be vaccinated.
However, if such a Ministerial Decision is issued, the Council of State has already prepared us that we should not expect its annulment.
And if those opposing are thinking of invoking a violation of their rights under the European Convention on Human Rights, the competent court (: ECtHR) has also given us its position.
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (May 9, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.