Can an Employee Refusing COVID Vaccination Be Dismissed?

Can an employee refusing COVID vaccination be dismissed?

In Hungarian surveys concerning COVID vaccination, numerous 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 has always been allowed to require COVID vaccination even without a specific legal foundation, should this be essential for safety, such as for healthcare professionals working with immunocompromised patients.

COVID vaccination at the workplace can be made compulsory

Following a change in legislation introduced  in November 2021, all employers may oblige employees to take COVID vaccinations from now on. Workers who do not comply with the vaccination obligation can be sent on unpaid leave for up to 12 months, starting from 16 December 2021.

The employer is to inform the employee of the obligation of vaccination with a 45-day deadline. This may take place electronically, by e-mail or in writing. An employee who is not to be vaccinated for medical reasons and this is supported by a medical opinion is not obliged to take the vaccine.

If the employee does not comply with the vaccination obligation, he or she may be sent on unpaid leave for a maximum of 12 months, after which the employer may terminate the employment relationship with immediate effect.

Imposing a vaccination obligation is a serious interference with workers' right to self-determination, and the labor law consequences described above can lead to litigation. It is therefore worthwhile for employers to identify the jobs in which vaccination is made compulsory with the involvement of occupational safety and epidemiological (medical) experts.

Compulsory COVID vaccination for all citizens is still unlikely

We note however that at the moment there is no indication that new legislation will make COVID vaccination compulsory in Hungary, as this would be contrary to the constitutional right to self-determination as it is currently understood, which is a part of fundamental human rights. However, there seems to be a change in the way self-determination is construed, as several European countries have introduced mandatory vaccinations. In January 2021, the Hungarian Government announced that there would be no mandatory COVID vaccination. This political statement gains additional relevance in light of the next parliamentary elections taking place in 2022.

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.