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Decision 3537/2021 on mandatory vaccination of healthcare employees
Constitutional complaint against Section 1 (6) and (8) to (10) of the Government Decree No. 449/2021. (VII. 29.) Korm. on the mandatory take up of the vaccine against coronavirus (mandatory vaccination of healthcare employees)
The Constitutional Court rejected the constitutional complaints for the declaration of a conflict with te Fundamental Law and annulment of the Government Decree No. 27/2021 (I.29.) on the declaration of a state of danger and the entry into force of emergency measures, and the Government Decree No. 449/2021 (VII.29.) on the compulsory use of the coronavirus vaccination. According to the provisions challenged in a large number of petitions, in order to protect the health and life of citizens, employees of health care providers are obliged to take up the vaccination by 1 September 2021 (15 September 2021 after the amendment of the decree) in the case of single-dose vaccines, or the first dose of the vaccination in the case of double-dose vaccines, and the second dose of the vaccination by the date set by the vaccinating physician. The government decree that entered into force on 19 November 2021 also required taking a third vaccination. Failure to take up the vaccinations shall result in immediate termination of the employment of the employee by way of dismissal or termination and the employee shall not be entitled to any notice period of dismissal or termination to any severance pay. However, the employee is exempted from the obligation if he/she is contra-indicated for medical reasons to take up the vaccination and this is supported by a medical opinion. The Constitutional Court has received a large number of constitutional complaints (almost 300), drafted on the basis of different model motions, but with essentially the same wording, concerning the mandatory vaccination against COVID-19 for health workers. The Constitutional Court merged these model motions in the present case, and admitted the constitutional complaint on 5 October 2021, and subsequently, in the course of the substantive examination, ruled on the case with urgency. The petitioners are health care workers subject to the government regulations. In their view, the contested provisions infringe the right to human dignity, the right to working conditions which respect health, safety and dignity, and the fundamental right to physical and mental health. As explained in the petitions, the government decrees on the mandatory use of the coronavirus vaccination, going beyond the mandate of the Fundamental Law, impose a disproportionate legal burden on the non-use of the vaccination and are unreasonable in relation to the objective pursued. In its decision, the Constitutional Court stated that the contested regulation serves the continuous operation of the health care system and the safety of patient care, and within the framework of these state objectives, the enforcement of the right to life and health of the members of society, the patients. The Constitutional Court recognised the enforcement of the right to life and health guaranteed by the Fundamental Law, the protection of institutions, the reduction of the health, social and economic impact of the coronavirus epidemic, and, in particular, the continuous functioning of the health care system and the safety of patient care as legitimate objectives of the mandatory vaccination of health care workers. In its decision, the Constitutional Court, also referring to the position taken by the World Health Organization (WHO), stressed that the achievement of public health objectives – in particular the containment of a serious epidemic and the mitigation of its consequences – may justify the use of coercive legal instruments as a last resort. In the present case, although the law-maker did not use direct coercion to require vaccination, it undoubtedly exerted strong pressure on health professionals (i.e. those who come into direct contact with patients) by imposing adverse legal consequences for failure to taking up the vaccine. The aim is to increase vaccination coverage in the health sector, which is the most critical sector for tackling the epidemic. In the Constitutional Court’s view, the actual obligation to taking up vaccination constitutes a proportionate restriction of the right to health self-determination, therefore the creation of the sanction under the contested legislation did not result in a disproportionate interference with the petitioners’ right to health self-determination and the essential content of that right. On the basis of the above, the Constitutional Court considered that the restriction of fundamental rights provided for was necessary and proportionate, and therefore rejected the petitions for a declaration that the contested provisions of the government decrees were contrary to the Fundamental Law and for their annulment.