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Hungarian Constitutional Court may scrap mandatory vaccination

At the end of October 2021, the Hungarian Government decided to take new protection measures to contain the fourth wave of the coronavirus outbreak, as a result, from 1 November 2021 employers have the right to require their employees to be mandatorily vaccinated. This means that to increase vaccination coverage and to protect workplaces, the Government allows employers to require their employees to be vaccinated against coronavirus as a condition of employment, either as a standard working condition for all employees or as an individual working condition depending on the job. For employees who have not yet been vaccinated, the employer may set a 45-day deadline for the first vaccination. Employers who require vaccination must inform the employee of the measure, the deadline and the possible legal consequences of not vaccinating, either electronically (in e-mail) or on paper. Furthermore, an employee who is medically certified as contra-indicated to be vaccinated against the coronavirus cannot expected to be vaccinated.

The above measure was not welcomed by the Hungarian Trade Union Confederation and the public in general. The extraordinary dismissal of a COVID-19 vaccination refuser is widely considered to be unconstitutional. In the view of the opposition, the Government decree is giving employers a tool that they can abuse to quickly carry out a wave of redundancies.

Since the Constitutional Court of Hungary recently accepted petitions challenging the regulation requiring health workers to be vaccinated against coronavirus starting from 15 August 2021, it may easily happen that this new decree will be reviewed and possibly revoked as well.

One of the problems to review is that if the employee does not take the vaccination within the time limit set by the employer, the employer may order unpaid leave and if the employee still does not take the vaccination within one year, the employer may terminate the employee's employment with immediate effect by dismissal or termination. This raises a number of concerns, as until now only the employee could request unpaid leave and the employer is not entitled to determine it.

The other problem is that when applying such measures, it must be assessed whether the restriction is proportionate to the individual right that is being restricted or whether it is necessary. Proportionality means, for example, assessing whether another measure that is less restrictive of the individual right would achieve the same result as the mandatory vaccination. The majority professional view is that in most cases a less restrictive means to keep the coronavirus out of the workplace (e.g. testing, work organization, home office, masking, and hygiene enforcement) can be achieved. For example, if the employee works from home and does not interact with others during the course of his or her work, there is no risk of the employer's continued operation or endangering the safe working environment, and therefore there is no justification for the restriction.

Even though the decision regarding the petitions was not made yet, the Hungarian Trade Union Confederation called for an extraordinary meeting of the Permanent Consultative Forum of Industry and Government, and the Society for Civil Liberties voiced it concerns as well. Certainties will only be available once the decision of the Constitutional Court of Hungary regarding the mandatory vaccination of healthcare workers is issued, and further predictions can be made accordingly about the future of the mandatory vaccination of all employees.