In our previous article, at the beginning of May 2021, we referred, among other things, to the obligation (or not) of employees to get vaccinated under the then existing legal regime. The data are changing extremely rapidly – especially with regard to the ongoing pandemic: While we observed new cases at the end of June be around 200-300 per day, we suddenly see them approaching 3,000. Nightmare scenarios predict, very soon, up to 10,000 cases per day. The fourth wave of the pandemic is already underway. The D variant threatens to “shake up” the health system again. Its weapon is the unvaccinated. Primarily the (for whatever reason) Deniers. But what is their impact on the operation of businesses? And what are the “weapons” of the latter to deal with them?

The Prime Minister’s announcements. The enforcement of vaccinations (targeted)

In the recent prime ministerial announcements of 12.7.21 regarding the handling of the pandemic, we heard, among other things, that the immediate vaccination of those employed in elderly care units, in the health sector, in the Armed Forces will become mandatory. Expected – among the sanctions – is the suspension of employment contracts of liable persons, who choose to not comply – despite the fact that they are employed in “critical structures”.

We have also heard about the possibility of marking some businesses that operate with staff who have been vaccinated or have gotten the illness in the last six months. This was followed by the (absolutely recent) relevant CMO [: D1a / in house protocol no. 44779 / 15.7.2019 (Government Gazette B 3117 / 16.7.21)], where in article 1 the “extraordinary measures of protection of public health per field of activity” were identified. Among them we find that for specific, exclusive, categories of businesses (eg those that operate in the fields of “Live shows” and “Catering” (: §§12 & 16) there is the possibility of their operation, should the businesses choose so, with the appropriate marking, solely with people who have been vaccinated or become ill in the last six months. Also, should all their employees have either been vaccinated and / or become ill during the last six months, those businesses have the right to display the following sign by affixing it in a prominent (obvious) place:

But if one of its employees is among the Deniers, the business loses the relevant privilege that comes with a self-evident, obviously not insignificant, financial loss.

Human rights – the right to vaccination and the right to its denial

Those who deny vaccinations invoke, among other things, their (violated) human rights. This particular topic has occupied us, in detail, in our article mentioned in the introduction. Very briefly:

Let us not forget that the most competent body to speak on human rights is none other than the ECtHR (: European Court of Human Rights). In a very recent decision (: 8.4.21-Vavřička and others v. Czech Republic) it assessed, inter alia, that those who refuse to comply should face the consequences of their refusal. And so did the decision of the CoC no. 2387/20 (which is really interesting and especially important for our country).

Therefore: each of us has, indeed, the right to choose to be vaccinated or not. But they must also be ready to accept the (legal) consequences of their refusal.

Implementation of the enforced vaccinations and the consequences for the “non-compliant”

On the issue of vaccinations, we already have, since the declaration of the pandemic, the necessary, constitutionally tolerated (more precisely: constitutionally imposed) legislation.

The (ongoing) National Vaccination Program, but also the possibility of compulsory vaccination of specific population groups, take place within the framework of these legislations. Among them is the possibility “for any partial or complete suspension of labour obligations” of the liable persons (inc .: articles 4 §3 law 4675/20 and article 1 law 4682/2020-which ratified the 25.2.2020 Legislative Decree and, in particular, article 1 §§2 & 4 thereof).

The situation is beginning to clear up, at least on a legal level, as we expect, precisely in this context and on the basis of the aforementioned prime ministerial announcements, the ministerial decisions that will make mandatory the immediate vaccination of specific categories of employees and the suspension of employment contracts of those refusing to comply. It would not surprise us if more categories of employees were included in the future (eg teachers and so on) …

But what about other businesses? Those who (co)constitute the backbone of the real economy of the country?

The obligation to ensure the life & health of employees-Sanctions

Businesses have extremely important (general and specific) obligations regarding “the health and safety of employees in all aspects of work” (indicative articles 42 & 43, law 3850/20). They must, inadvertently, comply with their specific obligations.

Let us not forget, moreover, that “the obligations of the safety technician, the occupational physician and the employees’ representatives do not affect the principle of the employer’s responsibility” (article 42 §3, law 3850/20). What does this mean? Violation of the obligations of businesses related to ensuring the health of employees burdens them as well, without a doubt. It even raises administrative and criminal sanctions.

Businesses must therefore (for reasons of compliance with the law – but above all for moral reasons) take the appropriate measures to ensure the highest good: the lives and health of their employees.

The Sword of Damocles is hanging over them in case they omit to do so.

Businesses in the field of production, services and trade-The stress-The impasses

In recent months, since the launch of the National Vaccination Program, businesses have increasingly turned to their legal advisers to investigate their ability (or not) to require the vaccination of their employees who refuse to get vaccinated. Lately the questions (and the stress) are getting more and more intense.

The basis of the relevant considerations is twofold. On the one hand, the continuation of the smooth operation of the business and on the other hand, the (reasonable) pressures they receive from the other (vaccinated and anxious for their own and their relatives’ health) employees. Especially the last issue is not minor: How to respond to the anxiety of a vaccinated employee, that they or someone close to them belongs to a vulnerable group, when they are forced to work with their unvaccinated colleague?

Lately we have seen employees’ representatives write public letters asking for (in fact) mandatory vaccination of their colleagues. We have also seen businesses threatening, in a disguised form or not, their employees who deny getting vaccinated or offering them various (financial and not) incentives in order to get the “valuable” vaccine.

We must be clear: It is a given that businesses are not entitled, at least under the current legal scheme, to impose the vaccination of their employees. Any such enforcement exposes them, irreparably, to a variety of sanctions.

The legislative background is also not there.

Unfortunately, the data is “blurred” even by official sources. We find that there are, wrongly, attempts made to pass on the relevant responsibility to businesses. A responsibility that belongs, without a doubt, to the executive authority and the legislature.

The right (?) to the suspension of employment contracts and the (without compensation) dismissal of the deniers

The Minister of Development and Investment, Mr. Georgiadis, argued, in his absolutely recent (17.7.21) television appearances, that a business has the right (in general) to suspend the employment contract of its unvaccinated employees. And also that it has the right to dismiss them, without compensation in fact, as non-vaccination is a great reason for dismissal.

It should be clearly emphasized, however, that the specific positions are very wrong, at least at a legal level, (in the case, of course, that they were correctly recorded during their publication). In brief:

Dismissal of an employee, without payment of the compensation due by law, is provided in absolutely specific cases. Non-vaccination is not included.

Also: it has not been ruled, at least to date, that a non-vaccination of an employee is an great reason for dismissal.

Finally: the suspension of the employment contract of an employee does not seem possible, in the present circumstances, as there is a lack of a relevant legal background (: see the Ministerial Decision, in particular, provided in article 1 §4 of 25.2.2020 Legislative Decree-ratified by Article 1 of Law 4682/2020).

The treatment of Deniers by businesses

It is a given that (for whatever reason) the deniers endanger the operation of the business. Also: the life and health of their colleagues and their relatives – especially those belonging to vulnerable groups.

Employers must take the necessary (and possible) measures on a case-by-case basis (: regular rapid tests and, possibly, molecular tests, teleworking, relocation, isolation from other employees, etc.). But it is obvious that the possibilities seem completely, on a practical level, limited. Moreover, not all businesses have multiple options and their jobs and / or spatial planning are not suitable for such alternatives.

The weight is transferred, unjustifiably, to them.

And it is inconceivably heavy.

Businesses are entitled (and obliged) to take all necessary measures to ensure the life and health of their employees. They are entitled, in this context, to require – but are unable to impose – their vaccination. Even when the (other) vaccinated employees (or people in their environment) belong to vulnerable groups and their lives are indeed in danger.

How can one explain to the latter that their lives are somewhat less important than the lives of those housed in nursing homes or healthcare facilities – where the vaccination of employees will be institutionally imposed?

Businesses are entitled (and obliged) to take all necessary measures to ensure their operation and continuity. The entrepreneur is the one who will be called to face any problems in their operation: the halt of the production line, the inability to deliver or the inability to serve their customers. Even when the cause is the illness of their employees – because of their refusal to be vaccinated.

How can one explain to the latter that their whole business can rightly be endangered by individual employees who unjustifiably refuse to be vaccinated?

And finally, how can one explain to the customers of a restaurant business how they can, safely, be served by the unvaccinated waiters, cooks or helpers of the restaurant / tavern that, under different circumstances, they would visit? And, in addition, how could they unjustifiably choose another establishment, with the valuable (above) mark, to enjoy the delicacies?

It is therefore obvious, based on the above data, that businesses are completely helpless against any employee who refuses (even for non-medical reasons) to be vaccinated. Let’s hope that, soon, they will be provided with the absolutely necessary legislative tools to manage such situations.

Until then, however, it seems perfectly obvious that:

Deniers vs Business & Economy: 1-0.-

Stavros Koumentakis
Managing Partner

 

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (July 25, 2021).

 

Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.