Balancing of fundamental rights by the employer?

Employer’s margin of appreciation to terminate or suspend the labor contract of non-vaccinated employees

During the public health emergency and the initial stages of the post-COVID period, states rendered several far-reaching restrictions of fundamental rights justified by the overarching interest for the protection of human life and public health. Amongst others, mandatory vaccination may be ordered by the employer, which imposes a clear limitation on employee’s right to free conscience, free self-determination, free occupation and right to work. Moreover, in several countries like in Hungary, the decision was vested in the employer for termination or suspension, while in the public sector, similar measures have been implemented also in other countries entailing constitutional review processes.

Nonetheless, requiring the employees to be vaccinated was also present before COVID-19, and employers were also involved in the establishment of such policies. For instance, in Hungary, the employer has been obliged to prepare a risk assessment and may be obliged to require employees to be vaccinated. However, the state provided strict prerequisites for the employers to balance which positions may be subject to which kind of vaccination as an ultima ratio solution.

Opponsek: Kártyás Gábor (PPKE), Hungler Sára (TK JTI)