Balancing of Fundamental Rights by the Employer? Employer’s Margin of Manoeuvre to Order Mandatory Vaccination and to Terminate or Suspend the Labor Contract of Non-Vaccinated Employees

Abstract

During the (post-)COVID period, states rendered several restrictions of fundamental rights justified by the overarching interest in the protection of human life and public health. Among others, mandatory vaccination may be ordered by the employer, which imposes a clear limitation on employees’ rights to free conscience, self-determination, free occupation, and the right to work. Moreover, in several countries, the decision was vested in the employer for termination or suspension. In a public health emergency, strong arguments support the implementation and extension of mandatory vaccination requirements as well as further extraordinary steps, such as unprecedented allocation of competences, may be reasonable. Some countries opted for mandatory vaccination in healthcare institutions as either a condition of employment or a precondition for entering the institutions. In these cases, however, mainly states had to balance the colliding fundamental rights in order to determine an exact conclusion. On the contrary, involving private stakeholders (employers) in determining the scope of the mandatory vaccination requirement may overstep the lawfully increased margin of manoeuvre of state authorities during a public health emergency. Several states allowed mandatory vaccination in the private workplace on very differentiated grounds. Based on the comparison of three models constituted by Canada, Hungary, and Poland, our research outcome provides a proposed system of criteria for states to determine under which circumstances and under which limitations private employers may be authorized with the power of balancing fundamental rights, especially regarding mandatory vaccination.