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Wednesday, 12 May 2021

The law on vaccination

Could the government or private-sector companies compel people to get vaccinated against Covid-19

Salma El-Nashar , Monday 12 Apr 2021
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After the receipt of 300,000 doses of China’s Sinopharm vaccine against Covid-19, Egypt started its coronavirus vaccination campaign to vaccinate mainly medical stuff, elderly people over the age of 65 and those with chronic diseases, as these groups have the highest risk factors for coronavirus infection. 

The Ministry of Health is also expecting to receive a large shipment of the AstraZeneca vaccine, as a result of an agreement concluded between Cairo and the Global Alliance for Vaccines and Immunisation (GAVI) to obtain 40 million doses this year, according to the latest updates. The vaccination campaign in Egypt will then reach a larger number of people, whenever the vaccines are more widely available.

At the moment, vaccination is optional, but could it one day become mandatory? Does the state have the right to make vaccinations compulsory for all, at least in some regions of Egypt? The answer is yes. According to the law, the state has the right to decide to vaccinate the entire population against disease, and it has faced a similar challenge before. During the reign of king Fouad I, the vaccination against Infectious Diseases Law 109 of 1931 was issued, which set out the infectious diseases against which vaccination was mandatory, namely cholera, plague and smallpox.

According to Article 6 of Law 137 of 1958 regulating Health Precautions against Infectious Diseases, recently amended by Law 142 of 2020 to include Covid-19 in the list of infectious diseases this contains, the health authorities have the right to order the vaccination of the population of any region of Egypt against any infectious disease. Thus, the government has the authority to order compulsory vaccination in the event that a vaccine is available in large quantities and its efficacy and safety have been proven globally, in order to protect public health and the health of its citizens.

However, if the situation remains optional as it is now, could private companies have the right to order their employees to get vaccinated under the threat of dismissal or as a pre-condition for the renewal of their contracts? In order to answer this question, a distinction must be made between two different cases.

The first case is when an employer is obliging current employees to receive vaccination during the term of their employment. The second case is when an employer is requesting this when renewing the contract of a current employee or concluding a contract with a new employee. In the latter case, an employer has the right to include among the terms of the employment contract any condition that ensures a safe working environment for workers, unless there is legislation that prohibits a mandatory vaccination clause. If this is not the case, new employment contracts may legally include a provision about requiring vaccinations, despite the practical difficulty of applying it at the present time.

But what about employment contracts that are already in force? Is it permissible for employers to force employees to get vaccinated against the coronavirus or face the threat of dismissal? 

Chapter Seven of the Egyptian Labour Law specifically lays out cases in which an employee or employer could terminate an employment contract, and Article 69 of the said law specifies dismissal cases. Neither of them expressly mentions any provision in that regard. However, the third paragraph of Article 69 states that an employer has the right to dismiss an employee if the latter repeatedly fails to follow instructions intended to ensure the safety and security of the workplace. Could this paragraph be applied to lay the burden of responsibility on the employee and not the employer? The answer is not conclusive and requires legislative intervention.

Under the Americans with Disabilities Act (ADA) in the US, an employee may be entitled to an exemption from a mandatory vaccine if the latter has a disability that prevents him or her from safely taking the vaccine. Similarly, under Title VII of the American Civil Rights Act of 1964, an employee may be entitled to an exemption if he holds a religious belief that prevents him from taking the vaccine. 

Some other legislation, such as the French Public Health Code, limits the mandatory vaccinations of employees to some specific professional sectors. It is stipulated in Article R4426-6 of the French Labour Code that an employer can recommend, where appropriate and after the proposal of the company doctor, the vaccination of an employee at his expense. In other words, the employer can only recommend such a vaccination, and the employee has the full right to refuse to be vaccinated.

In conclusion, maintaining the safety of the workplace is one of the main responsibilities of the employer in most national legislations including the Egyptian Labour Law, as well in international labour standards. However, the legality of mandatory vaccinations for employees is not yet codified in Egyptian law, which requires legislative intervention to regulate the limits of the authority of the employer in this regard and protect employees who may refuse vaccination for health condition or for any other reasons. 

It is also very important to examine the legitimacy of any mandatory vaccination clauses in employment contracts.

*The writer is an attorney at law.

*A version of this article appears in print in the 15 April, 2021 edition of Al-Ahram Weekly

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