Mandatory vaccination and the boundaries of limitation for the unvaccinated

The news and magazines cover pages are filled with a common theme these days – Covid-19 vaccination. It brings some interesting law related questions. What are the legal boundaries of making the vaccination mandatory? Is it discriminating to differ between the vaccinated and unvaccinated parts of the population?

Mandatory vaccination

Let us first think about the legal limitations of making inoculation mandatory. The legal order of the Czech Republic has known obligatory vaccination for some time thanks to the regular child vaccination required for getting your children into a state-owned kindergarten and their participation on its field trips.[1] It is a direct message from the law to its subjects that it is possible to make vaccination mandatory and therefore limit the inviolability of human beings if that´s what needs to be done to protect public health. Of course, there are certain exemptions set from the obligatory vaccination. Especially contraindications and the presence of any illnesses that makes it impossible to inoculate successfully. It is unacceptable to punish or handicap anyone who is not able to get a vaccine because of their medical condition as Professor Aleš Gerloch mentioned[2].

The prerequisites for the inoculation obligation

There are two essential requirements for enacting the mandatory vaccination for Covid-19; the availability of the vaccine and its undeniable effectiveness, its ability to protect public health.

Considering the current unavailability of the vaccine and the long virtual queues it is hard to imagine the actual enactment of an obligation to participate in such procedure and even more the subsequential fining or other disadvantaging of anyone who is not willing to do so.

The effectiveness of the vaccine must be undeniable. It is currently the most effective form of fighting against the spread of Covid-19. When considering such a massive intervention to the rights and integrity of people, the state and its government must always try to come up with the least aggressive way of doing so, it is, therefore, crucial to check if there are no other milder, less invasive options that would achieve the same goal.

It is at the same time evident that everyone endangered by the vaccination in any way cannot be forced into getting it and they must be excepted from the obligation. Connecting any negative consequences with someone's inability to get vaccinated is unacceptable.

In addition to abovementioned, there is also an issue of the impossibility of children vaccination by the currently available vaccines. They would then fall under the category of “non-vaccinable” due to contraindication which would in their case be age. Having said that it would be intolerable to prohibit them for this reason from going to school, participating in sports activities, etc.

The different regime of safety measures for the vaccinated and unvaccinated

In the context of thinking about making the vaccination mandatory, there is another topic that needs to be discussed. The possibility of different covid-19 measures for the people who took the vaccine and those who did not.

If it is certain that vaccinated people cannot spread the virus it does not seem adequate to prohibit or restrict their actions in the name of public health safety.

There is another important question at hand. Is it discriminating to set different rules for the vaccinated part of the population and the unvaccinated?

The Anti-Discrimination Act[3] defines certain prohibited discrimination reasons.[4] Inoculation is not one of them, so we cannot label treating unvaccinated differently as discrimination in the sense of the Anti-Discrimination Act. An exemption, which Jan Wintr[5] points out, are the “non-vaccinable”, who would be discriminated for their health condition which is forbidden discrimination reason.

But how do we distinguish someone unvaccinated from someone vaccinated and even more importantly someone unvaccinated due to health reasons from someone unvaccinated for any different matter? One possible solution might be requiring the confirmation of vaccination or a document confirming persons' inability to get vaccinated due to health reasons. Is it even permissible to require such information from someone? We believe that it is. A detail about someone's health condition is sensitive personal data in the sense of the GDPR regulation, but it can be processed if the reason for doing so is the public interest in regards of public health, which the fight with the spread of a global pandemic is.

Is the vaccination truly optional?

As of today, state says that the Covid-19 vaccination is optional. At the same time, we can hear and see politicians discussing different measures for the vaccinated part of the population and the unvaccinated.

It is the moment when the state starts distinguishing between the two groups when the serious concern about the true optionality of the vaccine is in place. The formally optional inoculation suddenly seems quite mandatory when it is the only way to be allowed to do something. Currently, with the vaccine unavailable it is inadmissible to pretend like the vaccine is optional and at the same time prohibit everyone unvaccinated from actions that are deeply connected with fundamental human rights; going to court, government institutions or schools.

The only alternative is to restrict everyone, vaccinated or not. At least before the vaccine becomes truly available. Let's hope it will be soon.

 Authors: Aneta Koubková and Adam Simota