Whilst the COVID-19 pandemic (SARS-CoV-2 virus) and the vaccination frenzy related to same has well died down since the pandemic broke out in early 2020, cases surrounding same and more specifically, whether an employer can force employees to get vaccinated remains a relevant and important health and safety consideration.

Indeed, in the request for a preliminary ruling from the Riigikohus (Estonia) lodged on the 22nd of March 2024 in the names A and Others v Tallinna linn (Case C-219/24, Tallinna linn) the European Court of Justice (‘ECJ’) delivered an interesting judgment concerning the possibility of requiring employees to undergo vaccination.

In this particular case, the facts revolved around the fact that the City of Talinn amended the professional rules applicable to ambulance staff, stating that vaccination against dangerous communicable diseases was required in order to exercise their profession, which profession put them at more risk than most other professions. In this case, the City of Talinn granted the applicants in the main proceedings a period within which they needed to furnish proof of vaccination against the SARS-CoV-2 virus, warning them that, in the absence of presentation of such proof, their employment contracts could be terminated.

The referring court in this case had doubts as to whether such a requirement is compatible with Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work and Directive 2000/54 on the protection of workers from risks related to exposure to biological agents at work (‘Directives’) and therefore referred the matter for interpretation to the ECJ.

The ECJ considered that, by means of the Directives, the EU legislator did not intend to define the conditions under which the Member States would be entitled or otherwise to impose mandatory vaccination such as imposing on employees the requirement to get vaccinated against SARS-CoV-2 virus, the issue in these proceedings.

As opined by the ECJ, both Directives, which are also transposed into Maltese law, lay down only ‘minimum requirements’ as regards the protection of the safety and health of workers and that mandatory vaccination, is not, as such, capable of affecting or limiting the minimum protection guaranteed by the Directives, nor is it capable of infringing other provisions of the Directives, or adversely affecting the coherence of the objectives pursued.

The ECJ in its judgement continued by addressing the applicability of Article 3(1) and Article 31(1) of the Charter of Fundamental Rights of the European Union (‘Charter’), relating, respectively, to the right of physical and mental integrity of the person and to the right of every worker to working conditions with respect to his or her health, safety and dignity. The ECJ in this regard considered that mandatory vaccination does not fall within the scope of Directives 89/391 and 2000/54 and that the mandatory vaccination in this case does not therefore constitute an ‘implementation’ of EU law within the meaning of Article 51(1) of the Charter. It follows therefore that the mandatory vaccination could not be assessed in the light of the provisions of the Charter of Fundamental Rights of the European Union.

In summation, the ECJ opined in this case that EU law must be interpreted as not precluding national legislation pursuant to which an employer may require workers with whom it has concluded an employment contract to undergo vaccination if they are exposed to a biological risk.

Back at the outbreak of the COVID-19 pandemic and the two years or so that followed, vaccination against the SARS-CoV-2 virus was highly encouraged and to an extent also pushed by the Maltese government in order for individuals to gain back some sense of normalcy in a situation which was a world away from normal.

Coupled with this, employers were left grappling as to how best to handle the COVID-19 pandemic and the situation that came with it at the workplace, leading many employers to undertake different measures, such as going entirely or at least partially remote in order to mitigate risks of exposure for their employees. Many employers were also rolling out policies which while did not mandate taking the vaccination against SARS-CoV-2 virus, highly encouraged doing so by disallowing those who refused to take such vaccination from returning to the place of work.

Whether such policies would be deemed to be legally sound, if challenged, remains a matter up for debate however, what is certain is that this judgment of the ECJ sheds light on the matter revolving around vaccinations and more specifically, whether an employer can force employees to get vaccinated. With this ECJ judgment now in existence, one is yet to see whether in the face of another pandemic or similar, national legislation will seek to allow employers requiring workers with whom it has concluded an employment contract to undergo vaccination if they are exposed to a biological risk.

How can we help?

We may assist with any ad hoc advice on the matter, as well as the drafting of any policies and procedures. Contact me on mattea.pullicino@fenechlaw.com