Most Israelis who tried to make appointments to get a coronavirus vaccine over the past few days never got through. The strain on the health maintenance organizations’ call centers is an encouraging sign that the public is interested in receiving the vaccine –- although many people are still expressing concerns about side effects, while others have declared that they won’t be vaccinated at all.
Currently, Israel isn’t forcing its citizens to get vaccinated and there’s no law that employers can use to force employees to be vaccinated. Around the world, employers are looking at exactly the same issues: what rights and commitments they have, and their workers have, related to vaccination. The main dilemma is over the question of individual rights to privacy and freedom versus the employer’s obligation to maintain a safe work environment for workers and customers.
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Many countries have a strong inclination toward protecting workers from employers’ imposition in their lives. The European Convention on Human Rights, for instance, protects the right to privacy, family life, the body and the mind, which goes against forcing workers to be vaccinated.
China and Indonesia recognize the human right to make decisions pertaining to one’s health. On the other hand, work-safety legislation in stringent countries such as South Korea and Germany mandate that employers protect workers from infection risks. Another issue concerning business owners is their legal obligation to the public and their customers.
The accepted starting point in Israel is that people cannot be forced to be vaccinated. But many things have changed since March, including the limits of employee autonomy.
Attorney Miriam Kleinberger-Attar, head of labor law at the Erdinast, Ben Nathan, Toledano law firm, notes that while up until a year ago legal experts would say that taking employees’ temperature at the workplace as a condition for entering wasn’t permitted, that’s already been changed by coronavirus-related legislation.
“Legislation aimed at controlling the coronavirus pandemic placed many limits on personal and civil freedoms – freedom of movement, freedom of employment and individual autonomy. The High Court of Justice approved harsh limits on personal freedoms that in the past we wouldn’t even consider, such as the ban keeping bereaved families from visiting their loved ones’ graves on Memorial Day,” says Kleinberger-Attar.
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Given the pandemic’s major economic impact and the significant restrictions placed on the public, and in order to ensure that the damage to the public and employers does not continue longer than it has to – it’s not impossible to imagine that employers may be given tools permitting sanctions against workers who refuse to be vaccinated, she says.
“This is particularly true for workers working with at-risk groups, such as doctors, nurses or health aides for the elderly,” she says.
Attorney Eyal Birenberg, an attorney at the Erdinast law office, raises another point: Even if a worker is vaccinated, the employer has no way of knowing if or when he got the vaccine, since this is considered private medical information. Thus, by giving employees incentives to be vaccinated, the employer can gain access to this information. Some workplaces have already announced benefits for workers who get vaccinated.
Worker’s freedom vs. boss’ power
Attorney Rami Landa, head of the labor law department at the Meitar law firm, states there could be cases where individual contracts or collective labor agreements mandate that employees must pass a medical exam. However, this does not mean that workers can force an employee to take specific action, such as getting vaccinated.
However, even if they can’t force vaccinations, employers can try to insist that workers who are not vaccinated cannot be present at the company’s premises. One of the main obligations that the labor court has imposed on employers is maintaining safe working conditions, Linda notes.
In the 1970s, Israel’s regional labor court ruled that if an employer violates the responsibility of providing safe working conditions, employees can resign but receive rights as if they were fired. That case involved a worker who was infected with lice by a colleague even after complaining about the risk.
However, as opposed to the case involving lice, a person who is unvaccinated may not necessarily put others at risk – if that person does not actually become ill in the first place, Landa says. Therefore, while it’s the employer’s responsibility to ensure a safe working environment, the case of an infected worker is not the same as the case of a worker who might become infected, he says.
The question becomes more acute when the workplace involves people at risk, who cannot be vaccinated for medical reasons. “The employer needs to take action in order to ensure that these people can work, and therefore you could argue that the obligation to vaccinate is reasonable in order to provide this group with the legal protection to work like everyone else,” says Landa. “However, this also involves significant harm to other workers’ right to privacy and autonomy, and someone could argue that the harm is unreasonable and disproportionate,” Landa says.
Incentive and coercion
Could Israel legislate a law mandating that residents or employees need to be vaccinated? Landa says that even if the Knesset were to pass such a law, it would probably not pass the High Court of Justice, due to employees’ right to bodily autonomy and the courts’ caution when it comes to mandating medical care, even in much more extreme cases.
Prof. Moshe Cohen-Eliya, president of the College of Law and Business and a constitutional law expert, says that constitutionally speaking, citizens cannot be forced to get vaccinated, but “less forceful methods” can be used such as financial sanctions or incentives. “The critical aspect is the meeting point between incentive and coercion. For instance, not allowing a worker to enter the workplace when that’s a critical aspect of the job, would be in my opinion disproportionate harm to human rights, because you’re taking away the person’s ability to make a living, and that’s too much.”
The use of sanctions to get parents to vaccinate their children was debated in the High Court of Justice in 2013. In this case, the justices ruled that an amendment to the National Insurance Law that would have cut off NII payments to a child who wasn’t vaccinated in keeping with the national vaccination schedule was constitutional. The justices noted that vaccines were intended to protect both the child’s health as well as the community, by maintaining herd immunity against dangerous diseases.
In this case, the judges ruled that this ran contrary to the human rights mandated by the Basic Law on Human Dignity and Freedom, but that it was proportionate due to its importance for public and children’s health.
How would the High Court rule on sanctions targeting people who don’t receive the coronavirus vaccine? For instance, would the court approve cutting the old-age stipend for anyone who refuses to be vaccinated? There’s no answer yet. Cohen Ilya says it would be problematic to revoke the full stipend, but the court might approve reducing it while taking into account the minimum for living in dignity.
Kleinberger-Attar says that given that the pandemic has caused a national crisis, the government needs to address the matter in legislation to limit employers’ exposure to lawsuits from their employees.
Different countries, different standards
While most countries don’t have laws mandating vaccines, the U.S. Equal Employment Opportunity Commission published a statement last week that if employers mandate that workers get vaccinated, this wouldn’t violate worker protection laws.
In Canada, the approach generally favors safety over individual rights, and legal experts say employers can force employees to be vaccinated. Employees are allowed to claim religious or medical exemptions.
In Australia, employers will need to prove that a vaccine is a necessity for their workers before being able to force them to be vaccinated. Health sector workers may fall into this category.
In the U.K., employers are legally obligated to minimize workplace risks. Thus, employers may demand that workers be vaccinated and employees would be required to oblige in order to enable their employers to uphold the law.