Is coronavirus vaccination mandatory at work? Although the current law does not require the vaccination at all, employers may require it to be taken as a condition of employment. Of course, this does not mean that vaccination will be mandatory in general. We show you step by step what your employer is entitled to and why. Legal analysis.
In this article, we show how and why an employer can make coronavirus vaccination compulsory under a recent government decree.
1. Is coronavirus vaccination mandatory or not?
First of all, we consider it important to clarify the above question: No, coronavirus vaccination is not mandatory under the current rules. (therefore there is no mandatory coronavirus vaccination in general and by law)
2. Regulation of compulsory vaccinations in “peacetime”
Regulatory system for compulsory vaccination. Legal bases.
Prior to the issue of “mandatory coronavirus vaccination in the workplace,” vaccinations are generally discussed. First of all, we want to provide guidance to those who are not so familiar with the system of legislation and the hierarchy of sources of law. The first part of the article is “Who can regulate and prescribe what?” types of issues.
The basic rules for vaccinations are set out in the Health Act , but the detailed rules are laid down in ministerial decrees.
In addition, within the framework of EU law, the Basic Law and laws, the detailed rules can often be laid down by decree of the minister responsible for the area (member of the government). In the Hungarian legal system, the Minister (or even the Government) may issue a decree on the basis of a statutory authorization for its own territory, taking into account the Basic Law.
This is also the case for healthcare and vaccinations, as a number of rules on vaccinations are laid down in a ministerial decree.
General regulation of compulsory vaccinations
According to the Health Act, the purpose of vaccinations is to provide active and passive protection against diseases.
On the issue of “compulsory coronavirus vaccination in the workplace”, two pieces of legislation will be analyzed below.
Mandatory vaccinations “regardless of the place of work”
“The Minister shall prescribe in a decree the communicable diseases for which
a) subject to age,
(b) in the event of a risk of illness, or
(c) in the case of travel abroad, at the expense of the traveler
there is a need to order a compulsory vaccination. “
At present, the Ministerial Decree does not make COVID-19 vaccination in connection with the coronavirus epidemic mandatory in general. This objective finding is extremely important for our analysis
Mandatory vaccinations depending on the workplace
The Minister may impose a vaccination obligation at the employer’s expense as a condition of employment in certain positions.
The relevant ministerial decree reads as follows:
“The employer is obliged to assess the biological exposures at work that endanger the health and safety of employees in accordance with the provisions of special legislation. In order to reduce this, as a condition of employment, it must ensure the vaccination of workers employed in the given vulnerable job in accordance with special legislation. At the request of the employer, the district office provides an expert opinion on the results of the survey of vulnerable jobs.
The order of recommended vaccinations related to the jobs is included in the VML issued annually by the National Chief Medical Officer. “
Pursuant to the legislation cited above, the order of compulsory vaccinations is defined in the Vaccination Methodology Letter (VML) issued by the national chief medical officer.
The methodological letter makes the following understandable findings regarding compulsory vaccination:
The first vaccine against COVID-19 in 2020. became available in December. Since then, our knowledge of individual vaccines, their indications, contraindications, efficacy and safety has been constantly expanding. As the epidemiological situation changes and the amount of vaccines that become more widely available, the rules for administering COVID-19 vaccines change. Accordingly, this Vaccination Methodology Letter does not contain provisions on vaccinations against COVID-19, current guidance is provided in the National Chief Medical Officer’s Circulars and other guidelines.
Thus, with regard to coronavirus vaccination, the VML also leaves any (!) Regulation to later, less regular forms of notification and methodological guidelines. Nevertheless, as we shall see, a government decree induced by an emergency allows the employer to require compulsory vaccination as a condition of employment.
It is also clear from the general rules that the cost of workplace-specific vaccinations is not borne by the state or the employee, but by the employer.
At present, vaccination against the coronavirus does not fit into the general regulatory framework in this respect either, as the vaccine does not have to be provided by the employer under the government decree described later.
3. The relationship between Government Emergency Legislation and Compulsory Vaccination in the Workplace
It is mainly in the social media, but also in many other places, that some theories can be read as to when a vaccination may be mandatory and when it may not. What the Government has a right to and what it does not have. So let’s look at the mere facts. Is there a mandatory coronavirus vaccination now? And is there a mandatory coronavirus vaccination in the workplace?
The Constitutional Authorization
The most important source of law in Hungary, if you can put it this way, is the Basic Law. The Basic Law provides as follows:
,, The danger
Article 53 *
(1) The Government shall declare a state of emergency in the event of an elemental disaster or an industrial accident endangering the safety of life and property, and in order to prevent the consequences thereof, and may introduce emergency measures specified in a cardinal law.
(2) In the event of an emergency, the Government may issue a decree with which, as defined in a cardinal law, it may suspend the application of certain laws, deviate from legal provisions and take other extraordinary measures.
(3) A decree of the Government pursuant to subsection (2) shall remain in force for fifteen days, unless the Government, on the basis of the authorization of the National Assembly, extends the decree.
(4) A government decree shall be repealed upon the cessation of the emergency. “
So what – at least – it’s worth finding out are:
- The Government can only declare a state of emergency in very extreme cases.
- It can only be regulated temporarily by a government decree – until the end of the emergency.
- The Decree of the Government may be applied after 15 days only with the authorization of the National Assembly.
As stated above, the emergency measures will also expire when the emergency ceases.
The statutory authority
Statutory provisions on the scope of government decrees
Emergency government decrees are in force for 15 days, as discussed above, unless the National Assembly authorizes their extension.
This was done by the Parliament in 2021 on the control of the coronavirus pandemic . Act I of 2006, the relevant passage of which is given below:
§ 2. (1) The National Assembly shall amend Article 53 of the Basic Law. pursuant to Article 53 (3) of the Basic Law, authorizes the Government to extend the validity of government decrees pursuant to Article 1 (1) and (2) until the repeal of this Act
Thus, the National Assembly has given a general authorization to extend the scope of its emergency decrees – based on its own decision – until 2021. extend it until its entry into force. Today, the law 2022. It is valid until January 1, but the National Assembly may change this or even revoke the authorization given to the Government.
Temporary statutory authority to “overwrite” laws
The basic statutory mandate was adopted in 2011 on the amendment of certain laws on disaster protection and related laws . Annual CXXVIII. The law expands in some respects:
In order to prevent a human epidemic causing a mass illness endangering the safety of life and property, and to remedy its consequences, in the event of an emergency declared in order to protect the health and life of Hungarian citizens – Articles 21-24. In addition to the extraordinary measures and rules set out in this Chapter, it may suspend the application of certain laws, derogate from legal provisions and take other extraordinary measures in order to guarantee the security of life, health, personal, property and legal security of citizens and the stability of the national economy.
Thus, based on what has just been described, the Government may, in an emergency and temporarily, override the provisions of certain laws.
4. How can you override an emergency government decree law, such as the Labor Code?
First, we state that in “peacetime,” a government decree cannot override a law. However, in an emergency, this is no longer the case with the limitations described.
We hear a lot of times that according to the Labor Code , unpaid leave can only be initiated by the employee and also that compulsory vaccination cannot be prescribed by the employer.
The latter has already been refuted in previous sections, and the “peacetime” rules also allow for workplace-specific prescription of compulsory vaccinations.
In the case of the former, it is possible on the basis of the above-mentioned – and expanded – legal authorizations. The possibility of overwriting laws by temporary and justified government decrees is allowed and fortified by the Hungarian legal system with a number of constitutional and statutory powers.
The control of such measures is in the hands of the Parliament and the Constitutional Court. As detailed above, the National Assembly also has a direct impact on the temporal scope of specific measures. The National Assembly also has the function of regulating (amending) the Basic Law, and it can also move the Prime Minister and, ultimately, the government.
Mandatory coronavirus vaccination in the workplace – emergency rules in place
Although we have done it many times, we will describe it now. The provisions quoted are only temporary and do not apply in peacetime. Furthermore, these provisions do not imply the introduction of compulsory coronavirus vaccination.
Therefore, we analyze the current rules in 598/2021. (X. 28.) Government Decree :
“In order to protect health, taking into account the specificities of the workplace and the job, the employer may make the taking of the vaccine a condition of employment for an employee who did not take the vaccine before the entry into force of this Regulation, unless the employee is vaccinated. shall be exempt from (…). “
The legislation may therefore order the vaccination to be taken as a condition of working during an emergency, taking into account the specifics of the workplace and the job. For example, a customer service may want to be vaccinated, but not for an isolated worker.
‘The employer (…) shall set a time limit for the administration of the vaccination, which shall be at least 45 days for the first dose of the single-dose vaccine and for the first dose of the two-dose vaccine. In the case of a two-dose vaccine, the second dose should be given at a time determined by your doctor. “
The employer is therefore obliged to give 45 days to take the (first) vaccination. So anyone who hasn’t taken the vaccine yet is given enough time by the law.
“The employer shall inform the employee by electronic means (including the use of e-mail) or on paper of the measure, the time limit and the possible legal consequences of not taking the vaccine.”
So, if the employer does not inform you properly or does not draw attention to the consequences of not taking the vaccine, then, despite the news from the tap, the legal consequences do not apply to him.
“An employee who is contraindicated to receive the vaccine for health reasons shall not be obliged to take the vaccine, and this shall be supported by a medical opinion prescribed by law.”
There are people for whom the vaccine is not medically indicated, they are not obliged to take the vaccine and therefore cannot be disadvantaged. Of course, the medical procedure is governed by the law, so it is not possible to obtain an opinion from anyone in this regard.
If the employee has not taken the vaccination within the time limit specified by the employer, the employer may order the employee to take unpaid leave, unless the employee is exempted from taking the vaccination by law.
Contrary to peacetime labor law rules, neither an amendment to an employment contract nor any other act is required for an employer to order unpaid leave.
“Contrary to the legislation governing employment, the employer may terminate the employment relationship of the employee with immediate effect by dismissal or termination if one year has elapsed since the order of unpaid leave, and
(a) the employee has not certified the vaccination to the employer in the manner prescribed by law, and
(b) the staff member fails to produce the appropriate medical opinion. “
After one year, if there are emergency regulations, there is a right to immediate termination if the employee does not create the conditions for fitness to work.
5. Conclusion – mandatory coronavirus vaccination in the workplace
- As these rules are only temporary, they will expire when the emergency goes away. Thus, it is far from certain that immediate termination after one year of unpaid leave will be available at all.
- Although the freedom to choose a job is restricted somewhere by those provisions, the employee is free to choose whether or not to take in unpaid leave.
- The above provisions do not make coronavirus vaccination compulsory.
- The Government has revised the general labor law rules in accordance with the applicable domestic legal system.
- Constitutional control of legislation is in the hands of the Constitutional Court, so in the event of a dispute, this body can decide whether emergency regulation was “appropriate.”
Experiences
Many employers do not comply with the vaccination requirement because their company may be paralyzed or at a competitive disadvantage vis-à-vis other companies. There are situations where not only legal considerations need to be taken into account and the current pandemic labor law rules prove to be so. So not only is there no mandatory coronavirus vaccination, many employers will not use workplace measures.
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