To get vaccinated or not to get vaccinated – that is the question.
The well-known Hamletian dilemma knows how to express itself in a variety of different forms and ways, thus by gaining a sense of timelessness. Having that mentioned, that is how it rises in the context of the actuality where we live in. While living in an already long period of pandemic, where the expected abnormality starts replacing ‘the normal’ in some aspects, many people get skeptical about anti-Covid vaccination. The degree of skepticism rises to a crescendo when it comes to legal obligation for vaccination.
At the moment, there is no any adopted law which weighs down the legal obligation of compulsory vaccination over a large part of the population. However, there have been attempts by various states in addressing this particular aspect. The U.S. is not alone in tightening the rules on some workers; the U.K. government has said that all care home workers will need to be fully vaccinated from November 11 onward, unless they have an exemption on medical grounds. Meanwhile, France and Greece have made similar announcements for public sector workers and, in Italy, teachers are now required to show immunity to Coronavirus before they enter a classroom. [1] There have been similar statements by the Albanian government too, although they’re still lacking their legally binding status.
The issue of human rights abuses that may occur as a result of a potential provision on compulsory vaccination, is as highly debatable as the offering of incentives to employees for receiving the COVID-19 vaccine or providing proof of vaccination. To conclude on the lawfulness of it, our macro-observation advances towards Strasbourg, where we take a pause of orientation through the established standards. However, there is still no case judged by the ECHR [2] on compulsory anti-Covid vaccination. Although lately, the Grand Chamber has spoken out about compulsory vaccination of children, and analogically, this can teach us something for as far as it concerns.
In the judgement of Vavřička and Others v. the Czech Republic [3], the Grand Chamber held by a majority of sixteen votes to one, that there had been no violation of Article 8 of the ECHR, on the right to respect for private life, concerning the 5 applications made against the Czech Republic.
In its judgment, the Court concludes that although compulsory vaccination, as an involuntary medical intervention, represented an interference with the right to respect for private life [4], the interference had an adequate basis in domestic law, the objective of the relevant legislation was to protect against diseases which could pose a serious risk to health, the vaccination duty could be said to represent the national authorities’ answer to the pressing social need to protect individual and public health; the choice of the Czech legislature to apply a mandatory approach to vaccination was supported by relevant and sufficient reasons, the measures had been in a reasonable relationship of proportionality to the legitimate aims pursued and they could be regarded as being “necessary in a democratic society”.
For the purpose of our vaccination context, it is worth dwelling on the assessment that the court makes in terms of proportionality. Compulsory vaccination of children shall be regarded as proportionate to all those vaccines that are considered safe and effective by the scientific community, always by considering the exceptions for specific reasons [5]; they can be legally binding only in conditions of the existence of internal procedural guarantees (i.e. effective means of appeal in domestic courts); if there is any fine imposition, as a sanction against the non-fulfillment of the obligation, then its amount shall be moderate and it can be given only once in a lifetime. Finally, when we talk about access to education, the court states that the right to primary school education of unvaccinated children, may potentially be denied to them, but when it comes to mandatory school attendance, vaccination status becomes irrelevant.
Thus, based on these conclusions of the ECHR, we are somehow able to come up with an idea, , on the compulsory nature of vaccination, despite the presence of a certain degree of vagueness.
However, one of the most easily predictable things is that the primary key of reasoning in such a case, will be occupied by the context, which can surprisingly change the trajectory of a potential decision by the court.
Meanwhile, the court rejected the request of 30 employees in the healthcare sector in Greece (who are legally obliged that in order to continue exercising their profession, they must receive mandatory doses of vaccine) to take interim measures and suspend law enforcement, by assessing that it falls outside the scope of Rule 29 of the Court, as these measures can only be granted by the court on exceptional basis. Therefore, this time the ECHR leaves us wondering.
Finally, the offering of incentives to employees for receiving the COVID-19 vaccine, gains importance. Regarding the lawfulness of these incentives, we conclude that it varies from one country to another according to the legal acts that have been adopted in the respective state. Therefore, employers should check for potential restrictions before deciding whether to implement a vaccination incentive program or not.
Based on US federal law, incentives can be made available if provided correctly. In particular, the Commission for Equal Employment Opportunities (EEOC) specifically advised that employers may order vaccination, as long as exemptions are provided for individuals found in conditions that prevent them from receiving the vaccination. Incentives being offered cannot be so substantial that they are coercive. [6]
In the meantime, until we face a potentially coercive obligation on compulsory vaccination and of course numerous reactions in response to it, everyone can be in a suitable-enough position in resolving dilemmas on their own.
[2] The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
[3] Court’s first judgment on compulsory childhood vaccination https://hudoc.echr.coe.int › app › conversion › pdf
[4] The Court also declared, by a majority, the complaints under Article 9 (freedom of thought and conscience) of the Convention inadmissible and that there was no need to examine the case separately under Article 2 of Protocol No. 1 (right to education) to the Convention.
[5] In addition, there was a further exemption on the basis of a “secular objection of conscience”, as recognized by the Constitution Court in Mr.Vařička’s case and further developed in subsequent cases.