Mandatory vaccination against COVID-19?

Posted by: 11. 8. 2021
Update: 13/5/2024

Currently, more and more citizens of the Czech Republic are being vaccinated against the disease COVID-19. Many of them get vaccinated voluntarily because they believe that only through vaccination will the world be rid of the ongoing pandemic, but there are also many who get vaccinated just to be able to function "normally" and use previously commonly available services, such as lunch in a restaurant or a visit to the hairdresser. The last group of people do not believe in vaccination and will not be vaccinated.

In recent weeks, it has also been said that interest in vaccination is waning, although a large part of the population is not yet vaccinated. In connection with this trend, the opinion that vaccination against the disease COVID-19 should be included among mandatory vaccinations is being heard more and more. But is this legally possible, and if so, under what conditions? Isn't this too much of an intrusion into a person's integrity? Does the right and freedom of the individual prevail here, or the advantage for the whole society? We will discuss this below.

The inviolability of a person is generally enshrined in Article 7 of the Charter of Fundamental Rights and Freedoms (Constitutional Act No. 2/1993 Coll., hereinafter the "Charter"), where the following is stated in paragraph 1: "The inviolability of the person and his privacy is guaranteed. It can only be limited in cases established by law." Furthermore, it is concluded that it is possible to limit the inviolability of a person while simultaneously observing the condition of the necessity of such a step in a democratic society due to a collision with another constitutional value or another fundamental right. As stipulated in Article 4 of the Charter, the above regulation must be interpreted restrictively. The right to the inviolability of a person can therefore be limited only on the basis of the law and if the condition of the necessity of such a step is met - i.e. that the given goal cannot be achieved in any other, less invasive way than the limitation of the fundamental right.

The legal system of the Czech Republic expressly imposes the obligation of vaccination against certain specific diseases, both for all persons with permanent residence in the territory of the Czech Republic, incl. foreigners, as well as for certain groups of persons listed in the decree, especially for employees working in the healthcare sector. Mandatory vaccination is regulated in decree no. 537/2006 Collection, on vaccination against infectious diseases (hereinafter "vaccination decree"), which is an implementing regulation to Act No. 258/2000 Coll., on the protection of public health and on the amendment of some related laws (hereinafter "Act on the Protection of Public Health"). The obligation to be vaccinated against certain diseases is enshrined in § 46 of the Public Health Protection Act, and specific diseases against which vaccination is mandatory are listed in the vaccination decree (e.g. diphtheria, tetanus, whooping cough, polio, etc. ). The disease COVID-19 does not occur among them.

The Constitutional Court has already dealt with the limitation of the fundamental right to the inviolability of a person in relation to vaccination in its decision Pl. ÚS 19/14. Among other things, the proposal called for the repeal of Section 46 of the Public Health Protection Act. The petitioners here found a contradiction between the legal regulation of compulsory vaccination and Article 4 of the Charter. They stated that the Constitutional Court has repeatedly emphasized in its jurisprudence that the limits of fundamental rights and freedoms can only be adjusted by law under the conditions set by the Charter, and according to the above, this is only adjusted by decree, which is insufficient. The Constitutional Court dealt with this in the above ruling as follows: "The authorization provided in the legal regulation to the implementing decree for the purpose of regulating the details connected with the implementation of mandatory vaccination is used by the by-law norm within the given limits, without interfering with the essence contained in the essential features of the law. Therefore, there was no legislative intervention in the guarantees provided to the holders of fundamental rights and freedoms in Article 4, paragraph 1, 2 of the Charter of Fundamental Rights and Freedoms." She expressed her different opinion on this decision JUDr. Kateřina Šimáčková, Ph.D. and her opinion is as follows: "The legal authorization not only does not contain a nominal list of diseases against which vaccination is mandatory, but it does not even in any way establish the criteria by which the ministry is to be guided when determining the scope of the vaccination obligation. (…) I find the current Czech legislation on compulsory vaccination to be in conflict with the fundamental right to the inviolability of a person, as the scope of compulsory vaccination is completely left to the will of the Ministry of Health and is not determined by law, as required by the Charter. At the same time, the current legislation does not even meet the requirement of the adequacy of interference with a fundamental right, as the objective pursued (protection of public health) could be achieved to the same extent by more gentle means, in which the choice of vaccine and dosage would be left to the parents themselves after consultation with doctors; the current legislation does not include the objective responsibility of the state for damage to the health of an individual who has undergone mandatory vaccination; and finally, the list of diseases against which mandatory vaccination is established is excessive, because for all of them this obligation is not sufficiently justified by the protection of public health." However, this different opinion is in the minority, and the Constitutional Court found that the current setting of mandatory vaccinations is in order.

Some employers are also thinking that they would require their employees to be vaccinated against the disease COVID-19, or that they would at least motivate their employees to get vaccinated, e.g. with financial rewards. This would be considered especially for workplaces with a higher risk of developing an infectious disease, which are defined precisely in § 16 of the decree on vaccination (e.g. workplaces of surgical fields, hemodialysis and infectious disease departments, etc.). These employees are required by law to get vaccinated beyond the scope of mandatory vaccinations, and passing vaccinations is a condition for working at the given workplace. According to the legislators, this need stems from the riskiness of their profession. But again, we come across the fact that vaccination against the disease COVID-19 is not mentioned in the vaccination decree, and it cannot be required of the employee if he himself does not want it. However, if the employer found that the vaccination of his employees is necessary and essential for the running of the company, he would have to justify his decision very well, and at the same time he would have to take into account that his regulation is not supported by law. If he decided only to positively motivate his employees, he would also have to deal with the issue of discrimination against those employees who cannot be vaccinated for health reasons. However, I would not recommend any of the employer's procedures mentioned above, as the employer would be treading on really thin ice and any legal dispute would probably end up in favor of the unvaccinated employee under the current legislation.

Based on the above, it can be summarized that if the vaccination against the COVID-19 infection is not part of the given vaccination decree, it cannot be required as mandatory for the time being, neither for employees nor for citizens in general. If, in the future, vaccination against the disease COVID-19 should be included among mandatory vaccinations, there would have to be a corresponding change in the legal order.

Source: epravo.cz