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Can a company force the worker to be vaccinated against the coronavirus?

The news about the high efficacy of vaccines such as Moderna (94.5%) or Pfizer and BioNTech (95%) They have brought great relief to many people who are beginning to see the end of the pandemic closer. Also the words of the Minister of Health, Salvador Illa, who recently announced that “Sometime in January” the drugs will begin to be distributed among the Spanish and that, “Most likely”, by the end of May vaccines will be close to having reached half the population. The imminent arrival of the drug may open a new horizon towards normality.

However, there is still a certain concern about the side effects it may have, although experts insist that those that go on the market will have all the mandatory and necessary requirements for their distribution. This situation can cause many companies to face resistance from their employees to receive the vaccine. In fact, according to a survey published by El País, one in three Spaniards is still reluctant to get vaccinatedwell because prefer to wait for a certain time to pass (37%) or why nor does he consider doing it (13.1%). Thus, the question arises as to whether employers could force their workers to be vaccinated.

A voluntary act

The Law of prevention of labor risks (LPRL) establishes that companies, whose responsibility is to guarantee the safety and hygiene of their employees in the workplace, can program mandatory medical check-ups, although “they will only serve to check the worker’s health status and, if necessary, unsubscribe”, Explains Félix Pinilla, coordinator of the legal services of UGT.

Vaccination, on the other hand, is a voluntary act. In our legislation, the only regulation that explicitly names vaccination at work is the Royal Decree 664/1997, on the protection of workers against risks related to exposure to biological agents at work. The decree states that “When there is a risk from exposure to biological agents for which there are effective vaccines, these must be made available to workers, informing them of the advantages and disadvantages of vaccination ”. But, in the end, eIt is the employee who decides whether to administer it or not. “This regulation is strictly applied to a specific list of professions in the biosanitary sector, such as doctors, nurses and laboratory technicians, and always under the principle of voluntariness,” says Rosario Rodríguez, Garrigues associate lawyer.

However, some experts propose request compulsory vaccination by the courts, alleging reasons of urgency and necessity, through the Organic Law 3/1986 on Special Measures for Public Health, which states that “the competent health authorities may adopt recognition, treatment, hospitalization or control measures when there are rational indications that allow to suppose the existence of danger to the health of the population due to the specific health situation of a person or group of people or due to the health conditions in which an activity takes place ”.

“If the judge accepts the petition, the worker has no choice but to inoculate himself to keep his job,” explains Eduardo Gómez, a partner at Dentons. Of course, it qualifies that this judicial route Only businesses that have a compelling health reason could access. That is, “simple economic or productive reasons may not be alleged.”

Can vaccines be mandatory for society?

Federico de Montalvo, president of the Bioethics Commission of Spain, adds that the voluntary nature of vaccination may disappear if the Ministry of Health orders the drug to be administered to the whole of society or to workers in different sectors based on the public health law before mentioned or to Organic Law 4/1981, of June 1, on states of alarm, exception and siege, Article 12 of which establishes that “the competent authority may adopt itself, depending on the case, in addition to the planned measures in the previous articles, those established in the rules for the fight against infectious diseases ”.

De Montalvo, an expert in constitutional law, considers that this would be the most suitable way to end resistance in companies, since it would avoid “many legal and ethical dilemmas”. An opinion shared by the labor worker Enrique Ceca, partner of the Ceca Magán law firm, who is committed to a immunization decree that allows companies to “proceed objective dismissal of those people who insist on disobeying by supervening ineptitude ”.

For the moment, the Government refuses to impose the vaccine as a mandatory measure because it trusts that citizens will be responsible and will agree to get it. In this sense, Illa stated that in Spain there are “A very high awareness” among the population regarding the benefits of the vaccine, so that he considers that “it will be enough.” Thus, he stressed that, despite the fact that “legally” the Government could establish this obligation, what will be done is to try to “reinforce” that idea with “the truth and the benefits it entails”. “There will be a very high level of response,” he said.