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Does an employer have the right to dismiss an employee if he or she refuses to be vaccinated against COVID-19?

Vaccines against COVID-19 have already been registered in a number of countries around the
world, and the process of vaccinating citizens has begun. The vaccination process itself raises a number
of legal issues. In particular, the question arises as to whether the employer shall have the right to compel
employees to be vaccinated, whether the refusal of the latter to be vaccinated can stand as a ground for
termination of the employment contract.
Currently, according to the order of RA Minister of Health N 21N of August 17, 2020, in case of
refusal of preventive vaccinations, each person or his / her legal representative submits a handwritten

resignation, after receiving prior advice on the possible consequences of refusal. In other words, getting a
preventive vaccine is, in fact, everyone's right. In addition, Article 25 of the Constitution of the Republic
of Armenia defines the right of everyone to physical and moral integrity, the possibility of restricting it
only by law for the protection of state security, crime prevention or detection, public order, health,
morality or fundamental rights.
Besides, according to Article 86 of the RA Constitution, among the main goals of the state policy is the
implementation of programs for the protection and improvement of the population's health, the
creation of effective, affordable medical care conditions.
Examining the case law of the ECHR on Article 8 of the ECHR (right to respect for private and family
life), we can conclude that compulsory medical care, including compulsory vaccination, constitutes an
interference with the rights set forth in this article (Solomakh v. Ukraine, 15 March 2012). In order to
assess the legality of the interference, a number of court cases determined a test consisting of 3 criteria:
 The intervention should be defined by law, which should be clearly accessible to everyone,
 The intervention must pursue a legitimate aim (protection of public life, health, morals, public
safety, etc.)
 Intervention should be necessary, and the need should be expressed by pressing social needs.
In addition to the above, Solomakhin v. Ukraine's case against forced vaccination states that in order to
assess the lawfulness of the vaccination, the two criteria shall be taken into account:  1) public health
considerations that necessitate the control of the spreading of infectious diseases; and 2) the assessment of
whether necessary precautions had been taken with regard to the suitability of vaccination for the
individual case at hand.
On the other hand, Articles 217, 243 and 248 of the Labor Code of the Republic of Armenia provide for
the right of employees to have,and the employer's obligation to ensure safe working conditions for health
in the workplace. If we take the provisions of Russian legislation for comparison, in this context the
requirement for the employee to receive another mandatory vaccination is defined only in case of certain
kinds of jobs, according to the relevant decision of the Russian government, on the grounds that these
employees are at high risk of spread of infectious diseases.
If we compare the legal regulations examined above, we can conclude that the employer can not, by its
internal legal acts, based on its obligation to provide safe and healthy conditions at work, establish a
mandatory requirement for vaccination of employees, as well as dismiss them if they refuse to be
vaccinated. The basis for this assertion is the fact that only a legal act adopted by the state can restrict a
person's right to physical integrity for the purpose of protecting the health of others.
To summarize, in case of refusal of vaccination, the employer may dismiss the employee if there is a
decision of the relevant state body on compulsory vaccination of employees (all or certain employees), or
at least a legal act that will allow the employer to establish a mandatory vaccination requirement by its
internal legal acts by the latter’s choice.
In the absence of such legal act, the employer may not, by reference to its obligation to ensure safe
working conditions under the labor law, compel employees to be vaccinated and, if they refuse, dismiss
them.

Aothor: Anzhela Abrahamyan / Associate

 


Disclaimer:
This material is produced by Legelata LLC. The material contained in this newsletter is provided for general information purposes only and does not contain a comprehensive analysis of each item described. Before taking (or not taking) any action, readers should seek professional advice specific to their situation. No liability is accepted for acts or omissions taken in reliance upon the contents of this material.

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