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Can an Employee Refusing COVID Vaccination Be Dismissed?

Can an employee refusing COVID vaccination be dismissed?

 

In Hungarian surveys concerning COVID vaccination, several respondents stated that they did not intend to be vaccinated against COVID. What are the possibilities of the employer if it imposes a vaccination obligation on its employees, but an employee refuses to be vaccinated?

The implementation of a healthy and safe workplace is the responsibility of the employer under the Occupational Safety and Health Act. Accordingly, the employer is obliged to take measures to protect workers and other persons in the workplace from COVID infection.

The above-mentioned safety measures include, in addition to complying with hygiene rules, the temporal and spatial segregation of workers, the introduction of a home-office, and regular testing. However, in some professions, the employer may require COVID vaccination if this is essential for safety, such as for healthcare professionals working with immunocompromised patients.

However, if the employee does not undertake the vaccination, the fulfillment of his or her employment duties becomes impossible for a reason attributable to the employee, which establishes the employer's right of termination. As an alternative to termination, the employer is entitled to offer the employee another position, but is not obliged to do so.

At present, there is no legislation that would make COVID vaccination compulsory in certain jobs, the decision is within the authority of the employer. Semmelweis Medical University, for example, requires its employees to either be vaccinated against COVID or tested every two days. In the future, it is expected that new legislation will be introduced to define the jobs requiring COVID vaccination, thus facilitating the task of employers, while also ensuring a transparent legal situation for employees.

Legislation on COVID vaccination would also be useful for other non-exposed or non-vulnerable jobs. For example, it is currently not clear if an employer has the right to check whether a worker has been vaccinated against COVID, except the case if this is a reasonable condition of employment for the job in question. Nor has the question been answered as to whether the employee can request that the employer provide him with regular, free testing instead of vaccination? Legislation could provide an effective solution to a number of such unresolved questions.

We note, however, that we do not expect that the new legislation will make COVID vaccination compulsory, as this would be contrary to the constitutional right to self-determination, which is a part of fundamental human rights. In January 2021, the Hungarian Government announced that there would be no mandatory COVID vaccination.

In April 2021, the European Court of Human Rights in Strasbourg passed a decision in the Vavricka Case, endorsing the general legal duty for parents in the Check Republic to have their children vaccinated against polio, hepatitis and tetanus. The said decision, supported by the interventions of France, Germany and Slovakia, may open a theoretical possibility for governments to make COVID vaccination obligatory, provided that it constitutes an appropriate and proportionate measure for the protection of the interests of society as a whole as opposed to the human rights of the individuals concerned. The decision of the Court was based on a case where the State did not have the right to use coercive force to vaccinate its citizens.

If you have any questions concerning the above, please do not hesitate to contact us!
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