Koumentakis

Tag: vaccination deniers

  • Mandatory Vaccination: Positions, Contradictions, Regulations & Businesses

    Mandatory Vaccination: Positions, Contradictions, Regulations & Businesses

    We were concerned, in our previous article, with the obligation (or not) of employees to get vaccinated as well as withs the consequences of their (possible) refusal (or weakness) (: Deniers vs Business & Economy: 1-0). This article was followed by a piece of legislation (Law 4820/21-Government Gazette A 130/2021), which attempted to contribute to the management of the whole issue. Did it help businesses and the economy? Now that “the dust has settled down” from the various view on the matter, we can make a sober and brief assessment of it. In this context, the absolutely recent views expressed by the President of our Republic and the position of the scientific community will assist us.

    The position of the President of the Republic (and of our Republic): The responsibility of all of us

    One of the central slogans in the anti-vaccine demonstrations is “punks, traitors, politicians”. Words, if nothing else, full of hatred and discredit. Words that clearly go beyond freedom of speech but also the right to criticize.

    Do all our politicians have these specific characterizations? During the 47th anniversary of the restoration of the Republic, we heard, among other things, the President of the Republic clarifying:

    “Democracy does not only promote individual rights. The virtuous exercise of citizenship presupposes the distance from selfishness and the recognition of the good of the many. Our freedom is not unlimited and it does not involve the harm of others. Its power is within and not outside the law. In the health crisis, we realized how much our actions and decisions affect our fellow human beings. Our obligations to society as a whole are the other aspect of our rights. As the fourth wave becomes even more contagious, we realize the importance and urgency of mass vaccination. “There is no ambiguity and doubt: the end of the pandemic is no longer a matter of good fortune or metaphysics; it is our choice and responsibility.”

    This is the essence of our democracy. This, and only this, is the position that may be appropriate for the issue of vaccinations in a benevolent and democratic country like ours.

    This is the reason why we must, without exception, adopt this view for this issue and for each any relevant one.

    The position of the scientific community: The way of transmission of the coronavirus

    Researchers from the Universities of Oxford, Colorado, California, North Carolina, Toronto and San Diego published (most recently-15.4.21) their study in the prestigious Medical Review “The Lancet” entitled “Ten scientific reasons in support of airborne transmission of SARS-CoV-2”.

    This study concludes:

    “There is steady, strong evidence that SARS-CoV-2 is being transmitted by airborne transmission. Although other routes may contribute, we believe that air transmission is likely to be dominant. The public health community must act accordingly and without further delay.”

    Should we remain inactive and apathetic as a society in this finding? What do we have to do – other than keep the windows open?

    Obligation to present a vaccination certificate or disease certificate

    The (absolutely) recent law, which we mentioned in the introduction, is moving in the direction of the views expressed by the President of the Republic and the aforementioned scientific study. It aims to remind us (but also, necessarily, impose) our democratic duty to ensure the lives and health of our most vulnerable fellow human beings.

    In this context, it provides (: article 205, par. a) that, until 31.12.21, “public and private sector employees who have completed the COVID-19 coronavirus vaccination or have become ill within the last six months, are obliged to demonstrate to the head of the organizational unit where they serve or to their employer, respectively” either a vaccination certificate or a disease certificate. In fact, the relevant certificates and attestations are checked “by the employer through the special electronic application” that has already been put into operation.

    Obligation to get vaccinated

    The specific piece of legislation imposes the obligation of vaccination “for imperative reasons of protection of public health”.

    In fact, this obligation concerns “all staff of private, public and municipal care units for the elderly and people with disabilities (medical, paramedical, nursing, administrative and support staff)” (Article 206 §1a).

    It also occupies “all staff (medical, paramedical, nursing, administrative and support) in private, public and municipal health structures (diagnostic centers, rehabilitation centers, clinics, hospitals, primary health care facilities, hospital units, National Organization of Public Health)” (§2).

    Let us clarify, of course, that the above personnel includes anyone who provides services or works – permanently or temporarily, directly or through third parties. Even the volunteers (§3).

    This obligation does not apply to those who have fallen ill (“for a period of six (6) months from the illness”) as well as to those who will be able to demonstrate specific health reasons (specifically identified by the National Vaccination Committee) that prevent them from getting the vaccine (§4).

    The deadlines for compliance and the consequences of refusal

    Those who are obliged to be vaccinated have a deadline to receive the first (or, as the case may be) single dose of the vaccine until 16.8.21 (or, in the case of healthcare facilities, until 1.9.21). They are also obliged, in cases where a second dose is provided, to proceed with the completion of the vaccination -as provided.

    However, in the event of non-compliance of those required to be vaccinated, severe penalties are provided for both employees and employers (Article 206 §6).

    For employees – “deniers”: Their contracts are suspended. Most importantly, however, they are not paid the required wages, whether they work in the public or private sector or are employed on employment, project, independent service, loan contracts or through a contractor.

    As for the employers who employ, nevertheless, unvaccinated employees, the penalties provided are severe: a fine of 10,000 to 50,000 € is imposed for each violation and, in case of recurrence from 20,000 to 200,000€ for each violation.

    The possibility of extending the measures to other categories of employees

    Although logically expected, the provision that provides for the possibility of extending the specific measures, by Joint Ministerial Decision, to other categories of employees, as well as the possible specialization of the specific regulations, caused quite a stir (article 206 §7).

    In particular, this provision provides: “the specification and extension of the categories of persons to be obligated to get vaccinated, the determining of the procedure and timing of vaccination, as well as any prioritization, monitoring and control of compliance with the obligation, the specific conditions of the protection of personal data and any other necessary details are provided… “.

    Based on the statements of the government so far and the relevant news reports, it seems that other categories of employees, such as teachers, are not so far behind.

    Replacement of the deniers – recruitments for a specific time

    In order to fill the gaps created in the Public Sector bodies by the suspensions of the employment contracts of those who refuse to be vaccinated, it is possible to hire staff with three-month fixed-term contracts that can be extended for another three months (Article 207).

    For the respective cases and gaps created in the private sector, the employer is entitled to act at will – without any restrictions.

    And the many (other) businesses?

    As the provisions mentioned above refer only to specific categories of employees, it is obvious that no other category is under them – at least for the time being.

    It is therefore obvious that all other businesses are called upon to manage corresponding problems without coverage from the government and without any directions.

    Unfortunately.

    We closed the last article in our series of the relevant topic, noting 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.”

    The State, however, chose not to take full responsibility and the relevant (but necessary) political costs. It currently limited the measures taken to specific categories of employees.

    The burden and responsibility is passed on, therefore – unjustly, to businesses that are called upon to solve intractable problems: Tolerance (?) of those who (even for non-medical reasons) refuse to be vaccinated, management of problems that may arise in production or customer service, safeguarding the lives and health of employees and their families – especially those belonging to vulnerable groups.

    It is desirable (in the context of the directions of the President of the Republic but also, of course, of the scientific community) for the State to take the absolutely necessary measures.

    The soonest possible.-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (August 1st, 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.

  • Deniers vs Business & Economy: 1-0

    Deniers vs Business & Economy: 1-0

    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.

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