HCLU's position on legal issues surrounding the coronavirus vaccine

According to our current knowledge, vaccination with a reliable and effective vaccine is the only way for us to be released from the measures restricting our liberties and for those who cannot take the vaccine to be safe too. For this particular reason HCLU encourages everyone to be vaccinated if their state of health allows and if certain conditions are met which are explained in detail below - taking previous positive scientific experience into account.

Under the Fundamental Law, all people have a right to life and human dignity. The government - which now has a special legislative mandate as well - has a key responsibility to do as much as possible to protect people’s lives and preserve their health in the current epidemic situation. In this context, it is also the government’s responsibility to ensure that the current measures restricting liberties can be lifted as soon as possible. In doing so, it must make an adequate supply of safe and effective vaccines available for its citizens. It is also the government’s responsibility to do everything in its power to ensure that citizens take vaccines at least to the extent necessary for herd immunity. Basically this can be achieved in two ways: convincing citizens that the vaccination is necessary or making vaccination mandatory.

If certain conditions are met, both ways are legally acceptable. However, the government has stated that it does not plan to make vaccination mandatory and as a starting point, we also consider this to be the best position. HCLU’s position is that if herd immunity can be achieved by means of convincing, it should not be enforced by the restriction of rights. Through this, protection can be guaranteed not only for those who cannot take the vaccine for health reasons, but also for those who refuse it for reasons of conscience. The government’s responsibility is to achieve the necessary vaccination coverage by convincing citizens.

The government has different tools to increase willingness to vaccinate.

Accessible, available on every platform that reaches people. The government has repeatedly demonstrated that it is familiar with and able to use these tools effectively, however, so far it has not used them for communication about vaccines. This omission should be made up for immediately.

Understandable, the information must be suitable for answering questions and doubts about the vaccination. Information must be professionally correct but also understandable for everyone. Current government information shows serious deficiencies in this regard as well.

Reliable, it must be suitable for reducing the high degree of uncertainty that we currently experience regarding the vaccination.

Willingness to be vaccinated can be increased by the government legally linking certain benefits or incentives to taking the vaccine that are expected to steer citizens towards engagement. However, this necessarily leads to inequality between vaccinated and non-vaccinated (see the section on vaccine passports for more details). It is the legislator’s responsibility to ensure that this inequality is not unlawful, especially because even lawful differentiation between citizens can lead to serious social tension, which can also undermine confidence in vaccination. For this reason, HCLU believes that the public should be persuaded primarily by means of appropriate information and confidence-building, and that the introduction of benefits and incentives regarding vaccination can be considered at most secondarily.

HCLU’s position is therefore that vaccination coverage must be achieved primarily by citizens themselves asking for the vaccination in sufficient numbers after making a decision based on the information provided to them. For this, restoring trust in vaccines and in the vaccination program is essential, which can only be achieved by providing understandable and reliable information, making transparent and professionally well-founded decisions, and by coherent action of public figures and the removal of the topic from the political battlefield.

The information provided not only has to comply with the principles detailed above (meaning it must be accessible, understandable and reliable), but social and scientific consensus has to emerge around it, which the government has to have an active role in. One tool to achieve this could be inviting public figures to participate in the campaign supporting vaccination, who enjoy public confidence and who, in their own right, find connection to certain sections of society. The government must have an active role in ensuring that well-founded scientific results are accepted by wide sections of society, including not creating uncertainty in relation to generally accepted scientific processes with their statements and actions. It is just as important for the arguments around vaccination not to be politically motivated, meaning taking or refusing the vaccine should not become a (party-)political question. This is another task in which the government has a key role, however so far it has shown passivity in this area.

Building trust is of particular importance when different vaccines become available in terms of origin, place of development and mechanism. It is also extremely important in connection with these that persuasion based on confidence-building and information is dominant because distrust in any vaccine authorized in Hungary can undermine trust in vaccinations in general. In the current situation, the Hungarian authority has the legal opportunity to issue authorization for a vaccine within its own competence, independently from the European Medicines Agency, and the government has even introduced a simplified opportunity for authorizing a vaccine which ignores professional aspects. The argument for a possibly simplified authorization independent from the European Medicines Agency is that it provides citizens faster access to vaccination; at the same time, in addition to eroding confidence in vaccination, it also carries the danger that the international community will not recognize Hungary's efforts to vaccinate. It is possible for example that travel restrictions will stay in place for citizens vaccinated with vaccines not authorized in the EU. If this is true, it is the state’s serious responsibility to make this fact transparent.

If the Hungarian authority makes use of the possibility of authorizing the vaccine under a facilitated procedure, it is especially true that the Hungarian state has the responsibility to build trust in the authorized vaccine. Besides the confidence-building aspects detailed above, the transparency and professional soundness of the authorization process becomes a key issue in this case, so that there can be no doubt as to the professionalism of the decision. In this context, it must be possible to consult any detail of the authorization process, including expert opinions; no stage of the process can be opaque.

Our position is that trust needs to be not only built, but restored in part, because the government has taken measures that can be specifically seen as undermining trust:

• So far, it has not published a vaccination plan, so it is only partially known in what order it plans to vaccinate each social group; trust is also undermined by the lack of knowledge about the criteria for determining the vaccination schedule.

• Communication about the availability of vaccines is deceptive.

• The authorization process for each vaccine is not transparent, communication about them is controversial, one vaccine was approved contrary to the opinion of experts, the possibility for authorization without professional opinion was created.

The government made the vakcinainfo.gov.hu website available on December 8th 2020, which – according to the government’s communication – is intended for registering for the coronavirus vaccine. However, even at the end of January 2021 it’s still not clear what the exact purpose of the registration is.

Since it’s not clear what the exact purpose of the registration is, it also raises some doubts regarding the legal basis for the handling of the data. Equally it’s also unclear whether it’s obligatory to provide contact data and if so, what purpose they are used for, and whether it has any negative impacts if the registering person doesn’t provide this data.

At the start, the government claimed that registration is voluntary, and its aim is to assess the demand for a vaccine. If this really is the case, it is questionable from a methodological point of view but not problematic from a legal standpoint. However it’s a whole different story if the registration really helps to get access to the vaccine, or it’s even a prerequisite for getting one.

The HCLU’s point is that – although it’s questionable whether it makes sense – from a legal point of view it can be acceptable to make registration a requirement for getting access to the vaccine. This, however, can only be lawful if the following criteria are met:

• the registration is required by a decree. If the government makes registration a requirement for the free vaccination, then the handling of the data provided during the registration can’t be treated as if it was based on the voluntary consent of the participants. Since the concerned people would like to get access to the vaccine, they are required to register, they have no choice. As the consent to data processing is not given voluntarily, the government can only process the data if they are authorized to do so by a decree. Thus, the processing of the data provided by the registered people can only be lawful if it is based on authorisation by a decree.

• the purpose of the registration is clear. The government needs to clarify exactly what consequences registering would have, and what rules apply to those who don’t register. This is based partly on data protection and partly on autonomy reasons. The government can only process data lawfully if they provide the reason for this clearly. This means that they need to make it clear for the citizens whether registration is absolutely essential to getting access to the vaccine, and if they don’t register, what consequence that will have. People can only exercise their right to accept or refuse the vaccine if they have been provided this information.

• the connection between the purpose of the registration and the vaccination plan is clear. The government needs to clarify how the vaccination order outlined in the vaccination plan and the order of registration relate to each other, especially whether those who are next in line in the vaccination plan but did not register would actually get the vaccine.

• access to registration is equal for everyone. Different social groups will have different opportunities to be able to access an online registration platform. Although elderly people received information on the registration process by letter, those in disadvantaged social groups are unlawfully hindered in the registration process if the only option is to register online.

the purpose of the data processing is clear. It needs to be clear why the data of those who register is collected, who will have access to it and for what purpose, and in what ways this helps in getting access to the vaccine. It also needs to be clear whether it is necessary to provide contact details and if so, who collects them and for what purpose.

What is a vaccine passport?

The vaccine passport can be a document that proves that its owner received a coronavirus vaccine, and thus can have access to services and can exercise rights that those who haven’t been vaccinated yet can’t. At the time of the finalization of this resolution, there are no known plans for decrees that lay out the exact details of a vaccine passport, but the general public could already hear about the intentions for its implementation in the communication from the government and from the EU. Therefore in this current resolution we refer to vaccine passport as the resolution which would set out different rights and obligations for those who have received the vaccine and those who have not.

This means that the consequences related to the vaccine passport are only known through statements made, even though the introduction of a system like this would raise a number of questions regarding the guarantee of fundamental rights. The vaccine passport contains highly protected, sensitive medical data, the appropriate handling of which is especially important from a data protection point of view. Having separate rules for those who have a vaccine passport would distinguish citizens based on their health status, which might result in discrimination. Although according to our standpoint there are circumstances which can support such a distinction, the legislators would have to take extra care in formulating this regulation in a way that respects the rights of both those who have received the vaccine and those who haven’t, as well as the community’s welfare.

In the majority of the cases those who are vaccinated against the coronavirus won’t be infected with it and can’t infect others with it either. This means that applying the same legal restrictions that we are under now would be unnecessary for these people. For them, the pandemic no longer poses a threat, which would warrant the lifting of the restrictions on social distancing and having access to services for such people. This positive situation can in turn be an incentive for getting vaccinated.

If immunization goes together with the ending of legal restrictions, that inevitably creates a distinction between vaccinated and non-vaccinated people. Discriminating against people is only forbidden if it is done arbitrarily. If there is a logical basis for discriminating between vaccinated and non-vaccinated people, then it doesn’t go against the ban on discrimination. According to our standpoint, a rational reason in this case would be based on the fact that maintaining these restrictions for the vaccinated people would lose its basis, and thus the discrimination can’t be considered arbitrary. At the same time, the legal consideration of this matter might have different results, depending on which services the vaccinated people would have access to, and which ones the non-vaccinated people wouldn’t have access to.

According to our standpoint, the current regulation, while there is no “vaccine passport” yet – meaning the same rules and rights apply to vaccinated and non-vaccinated people – would be an appropriate reference point later on in this situation. At the moment, everyone can have access to services that are related to basic needs. Considering this, it is worth examining what legal effects it would have if the rights of vaccinated people increased while non-vaccinated people had fewer rights.

As mentioned, we view the opportunities that come with immunization not as extra rights but rather as the ending of the previously imposed legal restrictions. When we look at which services can legally be made available only to vaccinated people, we take the current situation as the starting point. Currently, when there is no vaccine passport and there are no extra rights connected to the vaccination, everyone can have access to the basic services. We think that this needs to be maintained going forward, so the basic services (e.g. public transport, healthcare, education, administration, food shops etc.) need to be available for everyone, regardless of whether they are vaccinated or not.

The change in the entitlements is also related to the fact that this would help the government to increase the willingness to get vaccinated. We will discuss three subject categories below. We will look at what legal consequences it will have if vaccinated people become exempt from the legal restrictions (advantages); how we should understand from a legal point of view if they gain extra benefits (advantages); and how it should be considered from a legal perspective if non-vaccinated people will have fewer rights than currently (restrictions).

1. Advantages. Those who choose to get vaccinated can become exempt from the current rules and restrictions, e.g. they can be exempt from wearing a mask or from respecting curfew, they can visit catering establishments or community places (theatre, cinema, gym etc.), or they are not obliged to self-isolate upon entering the country. As this action does not mean the reduction of rights of those who are not vaccinated, and it has a rational basis (the end of infectivity), in our opinion this action does not cause discrimination. If the vaccination plan sets a reasonable order among the citizens to be vaccinated, the system of advantages can be introduced even at the beginning of the vaccination campaign without causing an infringement of rights. The system can be in effect until the vaccination threshold necessary for herd immunity is reached.

2. Incentives. The government can decide to provide extra benefits (that would not be received otherwise) to those already vaccinated. An example for this is the suggestion of Momentum, an offer of 100.000 HUF, or the idea of marijuana distribution in Washington state. For the assessment of such incentives their capacity for influencing the right of self-determination has to be considered. If the advantage offered by the incentive is too big, it can cause a situation where not everybody can decide freely to get vaccinated or not. It has to be assessed case by case if there is such danger involved, as it is obvious that the scale of the incentive - e.g. the suggested sum of 100.000 HUF - has a different effect among the poorer and richer layers of society.

Restrictions. It could happen that certain service providers, e.g. airlines exclude those who are not vaccinated from their services, while they only make their services available for those in possession of a vaccine passport. In case of core services this unmistakably infringes the principle of non-discrimination, so there is no legal possibility to implement such restrictions. We are of the opinion that all services that are available currently (in the period before the introduction of the vaccine passport) have to be kept available for everyone in the future as well. However it is uncertain whether those service providers whose services are currently unavailable, but who will reopen due to the increasing numbers of vaccinated persons, can introduce restrictions. We are of the opinion that if these service providers find good reasons to offer their services only to those who are vaccinated, they can legally restrict their services in such way.

Due to the infectivity of the coronavirus and the long-term incapacitation of those who fall ill, a number of employers would probably like to have their employees vaccinated. It is in the obvious economical interest of the employer that their employees are only incapacitated for the shortest possible time, and there are also some employers (e.g. healthcare and social providers) that also have to take the protection of the health of their clients into account. Moreover, the employers are obliged by law to create a safe working environment. Even though most of the employees are able to secure their own immunity by getting vaccinated, the employer also has to think of those of their employees who are not recommended to get the vaccine due to health reasons (e.g. immune deficiencies or pregnancy). Therefore, even though vaccination is voluntary, as an employee a citizen can face a situation that their employer takes steps to encourage them to get vaccinated. Hence arises the question: what actions can the employer take in such situation?

About making vaccination compulsory

The Health Care Act makes it possible for the health minister - in a ministerial decree - to make some vaccines mandatory in the case of risk of disease. This might include requiring a specific vaccine as the condition of employment for certain jobs. However, at the moment there is no ministerial decree in force to make the coronavirus vaccine a mandatory condition for any job. Therefore according to the legislation in force the vaccine is currently voluntary for all employees (including public sector employees and civil servants).

The starting point is that the employer has the right to introduce different measures in order to protect their business continuity whilst at the same time they must respect the entitlements that defend the rights of the employees.

The employer may attempt in different ways to make the employees get vaccinated. These can fall into two basic categories. One of the subject categories is that the employer mandates the employees to get vaccinated and puts sanctions in place for those who refuse the vaccination. The other one is when the employer offers advantages to those employees who get vaccinated. These categories fall under different legal considerations; therefore, they will be analyzed separately.

If the employer puts sanctions in place for those employees who do not get vaccinated, it is a form of coercion and as a consequence the employee is not able to decide freely whether they want to get vaccinated or not. Therefore, such expectations of the employer would restrict the employee’s personal rights protecting their human dignity including the right to the protection of privacy.

It is not unlawful by default for the employer to make expectations that limit the personal rights of the employees but for these cases the Labor Code mandates assurances to protect the employees’ rights. Such an assurance is that the personal rights of the employee can only be restricted if this restriction is inevitably necessary to ensure the achievement of preset goals, and the restriction is proportional to the achievement of the goal.

Applying this to the current scenario, it can be concluded that the employer can only mandate the vaccination (and sanction its refusal) if they can prove that.

- it is necessary; thus, the vaccination is essential due to reasons directly related to the nature of the employment or to ensure the protection of the rights or legitimate interests of other employees or a third party, and

- it is proportional; thus, the employer does not restrict the personal rights of the employees excessively.

Necessity can generally be explained by the current virus situation and that it interferes with production and provision of services, and that this enables the employer to maintain business continuity. The protection of those employees who cannot get vaccinated due to health reasons or of third parties can also constitute a lawful reason for the employer to mandate vaccination. These reasons, however, cannot always be considered valid. If the employee works from home regardless of the pandemic situation and does not meet other colleagues while working, then the reasoning that business continuity or the safety of the work environment is at risk is unfounded and does not justify the restriction of personal rights.

Regarding proportionality, it must be considered above all whether it is possible to apply such measures (with tools provided by the employer) at the given workplace that ensure protection against the virus and constitute a lesser interference with the personal rights of the employees, while the employer’s goals can still be achieved. Protective gear or regular testing for example constitutes a lesser interference with the privacy of the employees but during the consideration of this interest it cannot be neglected that the effectiveness of these protective measures is less than that of the vaccines. If milder measures are not available, thus the employer is able to justify that the interference is inevitable in order to achieve their goal, it still remains questionable whether the expectation towards the employee to get vaccinated respects the inviolable human dignity. (At workplaces, the law forbids the employer to have surveillance cameras in the changing rooms and the restrooms because there are no such interests of the employer that could justify such an interference of the employer with human dignity.) The proportionality of the restriction should always be weighed against the severity of the sanction resulted in by refusing vaccination.

Conclusions

The necessity-proportionality test prescribed by the Labor Code must be applied when requiring vaccination at the workplace, hence the legality of such actions of an employer can be judged only from workplace to workplace, restriction to restriction, i.e. only on a case-by-case basis. In each case, therefore, individual assessment is required of whether the employer should reasonably expect his employee to be vaccinated. Moreover, there can be no reassuring answer to this legal question until there is no established case-law on the employer vaccination expectations. The employer thus far takes a serious legal risk by imposing sanctions on employees who refuse to be vaccinated.

The Labor Code stipulates that the employee must be informed in advance in writing of the manner and conditions of the restriction of the personal rights, and the circumstances justifying the necessity and proportionality of the restriction. Therefore, it is not enough when the employer simply gives oral instructions regarding the vaccination, it must always be communicated to the employee in writing, with the content defined above. The employer must consider, and the employees must be aware that the employee has the right to refuse instructions which violate the employment rule. Thus, if the employee considers the instruction to be unnecessarily or disproportionately restrictive of his personal rights, he may refuse the instruction. Ultimately, only a court can decide whether an instruction to vaccinate was in fact an unnecessary and disproportionate restriction of personal rights.

We note that the law allows an employee to waive his or her personal rights by a declaration. However, the voluntary nature of resignation is questionable in such unequal power relations, as the employment. The employer might force a decision of those employees who would willingly not undertake to be vaccinated: the employee will either vaccinate himself or risk his or her livelihood depending on that job. The employee’s completely free choice is therefore apparent. The freedom of decisions accepting the personal rights waivers and the employer's instructions must be examined with great care, during which the context of the decision, the employer's dominance and the employee's vulnerability cannot be ignored.

Many employers might want to link employment-related benefits to vaccinations, thus encouraging their employees to vaccinate themselves. Such an advantage could be, for example, that vaccinated employees do not have to wear a mask or protective equipment, or it can even be a reward as well. Preference for vaccinated people, however, is a disadvantage for the non-vaccinated.

It must therefore be considered whether it causes discrimination when introducing an advantage. Discrimination between people is not always prohibited. The prohibition of discrimination applies only to arbitrary discrimination. Discrimination, in the present context, is arbitrary only if there is no reasonable ground directly related to the employment relationship. In general, such a reasonable ground can be found in a significant proportion of jobs. The world of employment has been torn between the epidemic and the associated restrictions to such an extent that the rationality of employer measures to encourage vaccination, and thus help return to the pre-epidemic world, can be justified in most employment relationships. It is important to emphasize that encouraging vaccination can only be legitimate in workplaces where employees are in direct contact with each other, because only in these places can it be demonstrated that the distinction is directly related and reasonable to the employment.

Risk of violating personal rights. However, it follows from the unequal nature of the employment relationship - from the fact that the position of the employer is stronger than that of the employee - that such an advantage or incentive may have a stronger effect in the specific relationship than it appears. Due to the situation of the employee, they often want to meet the expectations of the employer. If the employer links a positive effect on undertaking vaccination, it might mean to the employee that he or she also meets the employer's expectations by getting vaccinated. In such an indirect way, the employer can also interfere with the employee's personal rights by not imposing a sanction, a disadvantage, but an incentive or an advantage to undertake vaccination. These cases can be judged by using the necessity-proportionality test derived from the Labor Code as described above. However, it is also possible that the incentive scheme, to be introduced by the employer, will not have such an overarching effect. In this case, however, it should be considered whether such an advantage does not infringe the principle of non-discrimination. (The so-called reasonableness test for assessing non-discrimination is less strict than the necessity-proportionality test presented above.)

In our opinion, it is possible to provide a positive incentive, to provide the benefits related to the introduction of vaccination, under certain conditions, if the vaccination is able to have a positive effect on the continuation of work and the protection of employees.

The employer must also pay attention to those not vaccinating but it is not a decision of their own but a consequence of a medical condition. This is because the safety of coronavirus vaccination for some people (e.g. patients with immune deficiency, pregnant women) is questionable and not recommended. In our view, the employer cannot treat these persons in the same way as those who do not vaccinate themselves willingly, so that these persons cannot legally lose the benefits that the employer provides to the vaccinated.