In connection with the COVID-19 situation, many employees and entrepreneurs (employers) are interested in how Estonian labor law views so-called compulsory vaccination? Can the employer request this and, if the employee does not comply with this request (refuses to be vaccinated), for example, terminate his / her employment contract?

The state itself has explained the following on the kriis.ee website:

Question: 

Can the employer request the employee's health data (incl. About vaccination) and under what conditions?

Answer: 

The employee is generally not obliged to share his or her health data with the employer, including information about vaccination.

The employer has the right to ask the employee for confirmation that the employee's state of health does not hinder the performance of work duties and does not pose a danger to other employees or customers.

In particular, the employer has the right to ask about the employee's vaccination in justified cases, if the results of the risk assessment of the work environment show that vaccination is one of the possible measures to prevent infection in the given position and to perform work tasks safely in the future.

Although the employer has the right to ask about vaccination in certain cases, the employee has the right to refuse to share the relevant information with the employer.

In a situation where the employer, based on the results of the risk assessment of the work environment, asks the employee for information about his vaccinations or provides the employee with vaccination, but the employee refuses to provide information related to vaccination or refuses to vaccinate, the employer can:

• anticipate and implement other measures that can be used to mitigate the risks - for example, additional personal protective equipment, collective protective equipment, etc .;
• if necessary, reorganize the work in a specific part of the work or part of the employee. If the parties reach an agreement on the reorganization of work, the terms of the employment contract (for example, change of duties) can be changed only by agreement of the parties on the basis of § 12 of the Employment Contracts Act.

If the employer is not reasonably able to reorganize the work or take other measures to effectively mitigate the risks, the employer may have the right to terminate the employment relationship with the employee in unreasonable cases pursuant to § 88 (1) 2) of the Employment Contracts Act.

The situation has also been explained by the Labor Inspectorate, link: Coronavirus as a biological risk factor in the work environment and vaccination in 2021. - YouTube.

Does the worker have the right to refuse vaccination?

The employer cannot oblige the employee to go for vaccination, ie the employee has the right to refuse vaccination. If the results of the risk assessment show that vaccination is particularly important in certain sectors or activities (eg healthcare, nursing homes) and other measures are not effective enough to protect the health of workers or clients / patients, vaccination may be justified.

The employer may stipulate, on the basis of an action plan for risk assessment in the work environment, that he shall ensure that all workers have the opportunity to be vaccinated, but this does not mean that the worker must be compulsorily vaccinated. Violent workers cannot and must not be forced to be vaccinated, as this is contrary to the principle of physical integrity and would clearly violate human rights.

The worker must be aware of all matters relating to the risks to health in the working environment, precautions to be taken to avoid exposure to biological hazards, hygiene requirements, the use of personal protective equipment, the prevention of accidents and the action to be taken in the event of an accident. This means that employees must be informed after a risk assessment has been carried out or updated and new measures have been introduced. If employees do not know why any measures have been taken or why the employer has introduced new rules, this will lead to misunderstandings. It is therefore important for the employer to explain why vaccination is important and what the next steps are if the employee does not want to be vaccinated.

Government of the Republic Regulation No. 144 of 5 May 2000 “Requirements for Occupational Health and Safety in the Working Environment Affected by Biological Hazards” (Regulation) § 6 lg 2 p 7 under the same regulation § 5 eliminate these risks, minimize the risk to workers' health, ensure that workers who are exposed to biological risk factors for which an effective vaccine is available have access to vaccination.

It is important for the employee to know what is the consequence of the employer's refusal to be vaccinated - ie whether the employer has to reorganize his work, provide additional personal or general protective equipment or there is a risk that his employment contract will be terminated in exceptional cases it is not reasonably possible to reorganize the work or take other measures to effectively manage the risks, and the risk of transmitting the virus is high, endangering the employer's patients or customers.

Does the worker have the right to refuse vaccination and what is the consequence of such a refusal (the worker has no medical contraindication)?

Vaccination is not the only measure to reduce the risk associated with a biological risk factor, so the employer must consider different ways to mitigate the risks associated with biological risk factors.

429 / 5000 Tõlke tulemused the employer cannot oblige the employee to be vaccinated, but can only guarantee the opportunity. If the employee renounces it and other possibilities to reduce risks are not sufficient in the opinion of the employer, the consequences must be explained to the employee, warned in advance (preferably at least in a form that can be reproduced in writing) and in the absence of other solutions terminate the § 88 lg 1 p 2 employment contract.

At the same time, it must be explained to the employee that if he has other alternatives to vaccination to ensure the safety of the working environment, but refuses them all, it may be a violation of the employee's statutory or statutory order, which entitles the employer to call him with warning. and to terminate the employment contract in case of repeated violation due to the employee's violation of the Employment Contracts Act § 88 lg 1 p 3 või järgnevate employment contract.

In summary: As a general rule, an employer cannot require an employee to be vaccinated or dismiss him / her simply because he or she has not been vaccinated (extraordinary termination of employment). Apparently, the case law on how the situation is to be interpreted will finally be decisive here.