Private Choice or Public Health: the Middle Ground in Vaccination Row

Jan 22 , 2022
By Yehualashet Tamiru Tegegn

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Mandatory COVID-19 vaccinations are unlikely to be imposed in Ethiopia due to inaccessibility and possible infringement of the right to privacy and equality before the law, writes Yehualashet Tamiru Tegegn (yehuala5779@gmail.com), lawyer, consultant and researcher.

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On March 13th, 2020, Ethiopia confirmed its first case of COVID-19. Consequently, the government has introduced measures to mitigate its spread, including vaccination. There is some support from employers for the introduction of mandatory vaccination as a prerequisite for employment.

Mandatory vaccination is typically a reflection of an attempt on the part of companies and the government to control the spread of COVID-19 and to avoid the possible costs of treatment and care. But the majority of countries worldwide have not introduced mandatory vaccination as a prerequisite for employment.

“The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health," stipulates an article under the International Convention on Economic, Social and Cultural Rights, to which Ethiopia is a signatory. "The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for the prevention, treatment and control of epidemic, endemic, occupational and other diseases.”

The UN Committee on Economic Social & Cultural Rights, in its general comment, indicated that this imposed the obligation to “to provide immunisation against the major infectious diseases occurring in the community and take measures to prevent, treat and control epidemic and endemic diseases.”

Despite these positive obligations on the Ethiopian government, it is yet to introduce a compulsory vaccination law or policy. It advocates voluntary vaccination in the context of informed consent and counselling. This is because the effectiveness and side effects of vaccines are still unknown. Neither are there enough vaccines available.

It is the World Health Organisation's (WHO) position that national authorities and conveyance operators should not introduce requirements of proof of COVID-19 vaccination for international travel as a condition for departure or entry, given that there are still critical unknowns regarding the efficacy of vaccination in reducing transmission. Additionally, given limited availability, preferential vaccination of travellers could result in inadequate supplies for priority populations considered at high risk of severe COVID-19 infection. Although this was suggested in connection with mandatory vaccination of international travellers, it could also be applicable for employment cases. It is thus no surprise that the Ethiopian government has not made vaccinations mandatory.

Such a kind of compulsory vaccination is a restriction against many individual rights. No restrictions shall be placed on the exercise of the rights and protective measures other than such as are prescribed by law, deemed necessary for a democratic society in the interest of public safety, for the protection of public health or the protection of the rights and freedoms of others. Thus, in the absence of mandatory vaccination legislation issued by the government, a compulsory vaccination policy by any company may be challenged.

If an employer introduces mandatory vaccination as a condition for existing or future employment, it could be challenged on the following grounds.

Ethiopia's Constitution clearly states that everyone has the right to privacy. The International Convention on Civil and Political Rights, to which Ethiopia is a party, provided that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence. The right to privacy encompasses obligations to respect physical privacy in case of vaccination seeking the person's informed consent. Compulsory vaccination amounts to an interference with the individual’s physical integrity and, accordingly, with their right to respect for private or family life.

Moreover, requiring an employee to undergo a compulsory vaccination may be seen as a violation of the right to equality. A person willing to vaccinate may not be because of the limited availability. The government of Ethiopia has thus far classified health care workers as the most vulnerable group. The elderly and people above 18 years old with co-morbid conditions will be vaccinated. Recently, the government expanded the priority list to include bank tellers, customs office employees, school employees and the police.

Individuals who do not have access to authorized COVID-19 vaccination would be unfairly impeded in their right of employment if proof of vaccination status became a precondition for new employment or the continuation of their work. This, in turn, would be considered a violation of equality before the law. The Constitution states that all persons are equal before the law. It guarantees everyone equal and effective protection without discrimination on the grounds of race, nation, nationality, or other social origin, color, sex, language, religion, political or other opinion, property, birth, or "other status."

Thus, excluding an employee for refusal to vaccinate may be seen as violation of the right to equality enshrined under the Constitution.

There are also reasons to object from health-related concerns. Suppose a certain employer refuses to hire new employees or allow the continuation of an existing employment relationship as a penalty for non-compliance with the vaccination duty. In that case, it must also envisage the situation where vaccination damages the individual's health. There are reports that some COVID-19 vaccines may cause blood clotting in rare situations. Employees may object on such a basis.

While mandatory vaccination has no legal ground and could be challenged, it could be seen as one area of occupational safety and health (OSH). The labour proclamation requires co-operation between the employee and employer in the formulation of work rules to safeguard the workers’ health and safety and implement them in areas where the occupational health and safety requirements are provided.

Since no law or policy dictates mandatory vaccination, social dialogue and consultations between the employer and the employee would be better alternatives to establish if vaccination might indeed be required for designated jobs, based on objective and clear criteria.

Focusing on the importance of protective measures in the workplace and optional vaccinations rather than being obligatory is the best way to approach the matter. Alternatively, if an employer decides to introduce mandatory vaccination, it should be implemented in a non-discriminatory manner. Discrimination acts include any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Such other distinctions, exclusions or preferences, which may have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation may be determined by the member concerned after consultation with representative employers’ and workers’ organisations or other appropriate bodies.

Moreover, this should be done with due regard for specific circumstances that may require exemptions and accommodations through exceptions, not to mention that such vaccination measures should not involve expenditure for the workers. Under ILO Convention, occupational safety and health measures shall not involve any expenditure for the workers.

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PUBLISHED ON Jan 22,2022 [ VOL 22 , NO 1134]

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