Employers cannot fire an employee who is not vaccinated against COVID-19 until the Ministry of Health approves a list of professions for which such vaccination is mandatory, lawyers interviewed by Interfax-Ukraine have said.
Iryna Shaposhnikova, a lawyer at the Asters law firm, said that the law on protection of the Population from infectious diseases establishes a list of six mandatory preventive vaccinations, while vaccination against COVID-19 is not on this list, so it is exclusively voluntary.
At the same time, the lawyer said that this law provides that employees of certain professions, industries and organizations are subject to mandatory preventive vaccinations if their activities can lead to infection of other employees or the spread of such diseases. Thus, in addition to the list of mandatory vaccinations for all, there may be others if the work carries the risk of spreading infectious diseases.
For her part, Natalia Shvets, a counselor at the law firm Ario Law Firm, said that “the ideal option for both parties to an employment relationship is to find a comfortable compromise in advance. For example, agree on remote work or a weekly report on the PCR test.”
“In Ukraine, labor relations are regulated by the Labor Code, which clearly indicates the procedure and grounds for dismissing an employee from work. There is no norm on the possibility of dismissing for refusing to get a vaccine,” she said.
At the same time, Shvets drew attention to the fact that according to the law, “citizens have the right to safe working conditions, including the absence of the risk of infection.”
“The Cabinet can establish quarantine-restrictive measures to prevent the spread of infection. And an employee can be fired for violation of labor discipline. This includes non-performance or improper performance of labor duties,” she said.
For their part, the experts of the Omerta Law Firm said that currently there is no requirement that may oblige employers to provide their employees with the opportunity to vaccinate. However, on the initiative of the owner or an authorized body, the employment contract can be terminated if an employee is found to be inconsistent with the job position or work performed due to health conditions.
“Such a dismissal can only be carried out on the basis of evidence that due to the state of health, the employee cannot properly perform the assigned work duties. The dismissal of an employee on this basis is not a disciplinary measure, because vaccination against coronavirus is voluntary for all groups of the population,” the lawyers said.
Omerta experts said that the employer has no legal basis to force employees to be vaccinated against COVID-19 and to bring them to disciplinary responsibility for refusing such vaccination.
In turn, Kyrylo Kozak, a partner of the KPD Consulting law firm and a member of the council of the labor law committee of the Ukrainian Bar Association (UBA), reminded that the list of professions for which a periodic medical examination is required, includes the categories of workers who, due to their job responsibilities, come into contact with a large number of people or whose activities are associated with the risk of spreading diseases (services, catering, etc.).
The lawyer advises an employee, if such a decision is granted, to make a decision on vaccination if there are no valid reasons for refusing to be vaccinated. If the specified decision is not provided, then the employer will have to provide a written request asking to clarify the grounds for vaccination and the relationship of vaccination with the position held.
At the same time, lawyers interviewed by Interfax-Ukraine do not consider the employers’ requirements for so-called “health books,” which would indicate such vaccination, as an effective mechanism to stimulate vaccination against COVID-19. In particular, Shaposhnikova said that not all workers need a health book (the official name is “personal medical book”), and the Cabinet of Ministers established a list of industries whose workers are required to have such a document – the medical, food, educational spheres, etc.
At the same time, the lawyer considers it illegal to attempt to oblige employees to have health certificates, which will indicate vaccination against COVID-19, since the legislation defines an exhaustive list of diseases for vaccination, and COVID-19 is not included in this list.
“To date, there are no direct legislative mechanisms using which an employer can oblige an employee to be vaccinated against COVID-19. Therefore, the only method is clarification, persuasion and finding understanding, consensus. Any coercion (fine, suspension, dismissal, etc.) will be illegal,” the lawyer said.
LIST PROFESSIONS, MANDATORY VACCINATION, UNVACCINATED EMPLOYEE
