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Legal View

The mandatory vaccination debate

No case has yet been brought before the ECHR concerning employees and mandatory vaccinations
How far do mandatory vaccinations for employees clash with human rights?

By Aylin Zeybek

The growing prevalence of imposing mandatory vaccination as a condition for employment raises issues over how to implement this policy without violating the law.

One of the most pertinent questions is whether such an employer-imposed requirement violates human rights. Unfortunately, there is no clear-cut answer to this question.

The European Court of human Rights’ (ECHR) decision on Vavricka and others v Czech Republic [2021] concerning the implementation of a mandatory childhood vaccination programme in the Czech Republic gives the impression that it is possible for an employer to require employees to be vaccinated against coronavirus without contravening the ECHR. However, the case must be studied very carefully and in detail.

The case concerned a compulsory vaccination programme which was introduced by The Czech Republic, requiring children to be vaccinated against nine diseases. There were monetary sanctions imposed for non-compliance, while children who were not vaccinated were expelled from school. After being penalised for not complying, six individuals sued, alleging that the mandatory vaccination programme violated their rights. In particular, they claimed that it violated both Article 8 and Article 9 of the ECHR, which guarantees right to a private life and freedom of thought, conscience and religion, respectively. Even though the Czech national vaccination programme did infringe on claimants’ rights, the ECHR found that it was justified as a proportionate means of protecting its population from serious diseases. In the circumstances, the relevant vaccinations were known to be safe and effective. Students were also allowed to continue their schooling once they reached the compulsory school age.

Although the Vavricka case gives the impression that it is possible for an employer to require employees be vaccinated against coronavirus without contravening the ECHR, it must be noted that the decision was case specific. It concerned vaccinations against long standing diseases and dealt with a very different situation from the current one with Covid-19. Accordingly, the Vavricka decision does not give the green light either to the governments or employers to make vaccinations compulsory.

In addition, the Council of Europe’s Resolution 2361 (2021) on the ‘Covid-19 vaccines: ethical, legal and practical considerations’ which was adopted on January 27, 2021 also points out that the vaccinations are not mandatory. Under Article 7.3.1 it states that;

‘…with respect to ensuring a high vaccine uptake:
ensure that citizens are informed that the vaccination is not mandatory and that no one is under political, social or other pressure to be vaccinated if they do not wish to do so’

So far, there has been no precedent decision in an employment context at the European Court of Human Rights that would give us some idea on how the court would interpret a Covid-19 mandatory vaccination case. Under such circumstances, all human rights issues, as well as potential discrimination matters should be considered by employers as a precautionary measure to avoid any human rights violations that might arise.

A consideration must be given to the fact that the vaccination may not be suitable for everyone. In addition, in case of a mandatory vaccination requirement for employees, individuals with what is known as ‘a protected characteristic’ such as age, disability, pregnancy, sex, race and religion or belief will be at a particular disadvantage compared with those without which could result in a breach of their rights under the ECHR.

Furthermore, a mandatory vaccination requirement based on health and safety grounds might be hard to justify for employers. Although vaccination reduces the chance of the vaccinated individual catching Covid-19, it is still unclear by how much vaccination can reduce its transmission. As the current recommendations clearly show, vaccination is not a substitute for adequate workplace security measures.

In light of all these, it is suggested that all employers should consider alternatives to mandatory vaccination. To minimise workplace health and safety risks, employers may consider allowing employees to work remotely, or temporarily changing their roles or responsibilities wherever possible, in order to avoid any potential discrimination and human rights violations.

Aylin Zeybek is a trainee lawyer at the Elias Neocleous & Co LLC

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