Labour Law Professor, Universidade Presbiteriana Mackenzie (Sao Paulo, Brazil)
15th February 2021
The Covid-19 pandemic – like any extraordinary event – is consolidating itself as a real laboratory for legal challenges. Technically, the debate is about the constitutional limits to the determination of sanitary measures within the scope of public policies for the eradication of infectious diseases, as in the case of COVID-19. A core element of the legal dispute, therefore, is the conflict between the collective interest (and / or the principle of solidarity) and individual freedom such as autonomy and the individual’s right to self-determination.
The main dilemma has been centred around the quantum of relativity (or absolute) which exists in the right to public health over the right to economic freedom. But not only that. In fact, in the name of preserving public health, this weighting / balancing exercise (in many cases a total sacrifice) has also interested fundamental rights such as the right to education, religious freedom, as well as the right to come and go (among others).
The arrival of the vaccine in 2021, while on the one hand bringing a certain dose of collective relief and encouragement that allows us to continue in social isolation, on the other hand triggers new questions in the world of law, starting with the legitimacy of the mandatory mass vaccination, in view of the growing wave of scientific scepticism towards the newly produced vaccines to cope with Covid-19.
The fear of the vaccine is based on several personal issues, ranging from philosophical or religious positions, or those linked to certain lifestyles, to the fear of adverse effects or doubts about the efficacy and safety of the vaccine, or by questioning the very need for use of a vaccination. Vaccination scepticism is not a recent phenomenon. According to a study by the World Health Organization published in 2019, vaccine hesitancy represents one of the top ten health threats on the planet (WHO – World Health Organization, Ten threats to the global health in 2019, https://www.who.int/news-room/spotlight/ten-threats-to-global-health-in-2019).
Apparently, the conflict between public health and patient / citizen autonomy does not allow for absolute and universal solutions. If, on the one hand, medicine is today guided by a post-Hippocratic ethics, which represents the transition from the ethics of care (state paternalism) to the ethic of autonomy (GRECO, Luís. SIQUEIRA, Flávia. Promoção da saúde ou respeito à autonomia: intervenção cirúrgica, exercício de direito e consentimento no direito penal médico. Studia Juridica. Estudos em Homenagem ao Prof. Doutor Manuel da Costa Andrade (vol. 1), v. 108, p. 643–669, 2017), on the other hand there is a crucial distinction to be made as the principle of self-determination includes the right to refuse health treatment. It is therefore important to clarify the distinction between therapeutic refusal and vaccine refusal, a characterization that measures its consequences ethically in terms of how much collective harm there is in individual behavior.
As Fürst explains, “therapeutic refusal occurs when faced with a situation in which the patient has a disease and refuses intervention that can provide a cure, attenuate or give quality of life while living with the disease, and there is no impact on the health of others. This, however, represents a strictly autonomous and existential decision, which is taken on the basis of free, available information, hence, calling this decision free and informed consent. (…) Potential ethical conflicts arise from autonomy in the face of ethical paternalism” (Fürst Henderson, http://genjuridico.com.br/2020/12/14/recusa-terapeutica-e-recusa-vacinal/. As the Author explains, in Brazil, “the vaccine refusal is not supported by the therapeutic refusal as a patient’s right, as evidenced by Resolution nº 2,232 / 2019 of the Federal Council of Medicine: Art. 5. The therapeutic refusal must not be accepted by the doctor when it characterizes abuse of rights. 1º Characterizes abuse of rights: I – The therapeutic refusal that puts the health of third parties at risk. II – The therapeutic refusal to treat a communicable disease or any other similar condition that exposes the population to risk of contamination. […] ”).
On the other hand, when we talk about vaccine refusal, the essential premise is that the subject is not affected by the disease, since the vaccine acts as a prevention, not as an intervention/cure. In this sense, the author clarifies: “there is an impact on the health of others, as it is a question of preventing infectious diseases”(Fürst Henderson, http://genjuridico.com.br/2020/12/14/recusa-terapeutica-e-recusa-vacinal/.). The refusal, therefore, represents a public health risk insofar as it prevents or hinders the logic of community prevention. In this case, “ethical conflicts are on the topics of autonomy against solidarity and vulnerability”( Fürst Henderson, http://genjuridico.com.br/2020/12/14/recusa-terapeutica-e-recusa-vacinal/.).
Recently, on December 17, 2020, the Supreme Federal Court of Brazil (STF) determined the constitutionality of mandatory vaccination (provided on the Law No. 13,979/2020) under certain conditions. Specifically, two Direct Actions of Unconstitutionality (ADIs 6,586 and 6,587) were analysed together, both of which dealt with vaccination against Covid-19, and the Extraordinary Appeal (ARE 1,267,897), which decided on the illegitimacy of parents’ refusal to vaccinate their children for reasons of philosophical, religious, moral, and existential conviction.
With the thesis established by ARE 1.267.897, the Court determined the constitutionality of mandatory immunization by means of a vaccine registered with a health surveillance agency, provided that vaccination is included in the national immunization program, its mandatory application is determined by law and finally, and as long as it is the object of determination of the Union, States and municipalities, based on scientific medical consensus. According to the Court, vaccination in such cases does not violate the freedom of conscience and philosophical belief of parents or guardians, nor family power.
In the same plenary session, ADIs 6,586 and 6,587 established that the compulsory vaccination does not coincide with forced vaccination since the user is always allowed to refuse the vaccine. However, the Court clarifies that the Union and the States, the Federal District and the Municipalities, may implement vaccination through indirect measures such as the restriction to perform certain activities or the visitation of certain places, as long as this is sanctioned by the law, that the measures are based on scientific evidence and pertinent strategic analyses, and that ample information on the efficacy, safety and contraindications of immunizers is provided. In addition, human dignity and the fundamental rights of people must be respected, it must meet the criteria of reasonableness, proportionality, and vaccines distributed universally and free of charge.
In the difficult search for a reasonable and proportional balance of the sacrifice imposed on colliding fundamental rights, the following passage taken from the vote of Justice Barroso, rapporteur of the above mentioned ARE 1,267,897, deserves special mention. In the Justice’s reading, the collective interest in public health and individual autonomy finds balance in the very concept of human dignity. Barroso explains: “human dignity has three essential elements: (i) intrinsic value, an ontological element that qualifies every person as an end in itself, and not as a means for the achievement of collective goals or the personal projects of others; (ii) autonomy, an ethical element that ensures all individuals the right to make their existential choices and live their own ideal of a good life; and (iii) community value, a social element that defines the contours of human dignity, imposing limits on individual autonomy, due to the duty to respect the rights of others and some social values shared by the community. Human dignity as a community value, also referred to as dignity as heteronomy, is justified by three objectives that the legal system considers legitimate and desirable: (i) the protection of the rights and dignity of third parties; (ii) the protection of the individual’s rights and dignity; and (iii) the protection of shared social values ”(in this sense, Justice Luís Roberto Barroso, rapporteur of ARE n. 1,267,879 who decided on the illegitimacy of the parents’ refusal to vaccinate their children due to philosophical, religious, moral and existential reasons. Available In: “Anotações para o voto oral”. Available at: https://www.conjur.com.br/dl/anotacoes-barroso-acoes-vacinacao.pdf).
Human dignity, therefore, represents the synthesis between an “internal” or intrinsic dimension, as a right to self-determination and an “external” or community dimension as an axiological reflection of the community where the individual is included. In this sense, the Nation is legitimating, in exceptional situations, to protect people even against their will, and determining that any individual choice that may threaten the rights of third parties is unlawful.
After the STF pronouncement, the labor law community has raised several questions since the Covid-19 pandemic determines the following equation: the workplace is (in most cases) a co-living space, therefore, synonymous with danger to worker´s physical safety. Is the employer legitimately allowed to apply disciplinary measures in the case of unjustified refusal by the employee to be vaccinated? To what extent is the dismissal of workers who refuse vaccination considered discriminatory? Does the unvaccinated worker become objectively unfit for work in certain sectors most exposed to Covid-19 contamination?
Brazilian doctrine has not yet found a consensus on this. On the one hand, there are those who defend the prevalence of collective interest for a safe work environment and, therefore, consider it legitimate (although ultimately) to dismiss employees who, with their refusal to vaccinate, would threaten the health of their colleagues. In this sense, the Constitution of the Republic, in article 7°, item XXII, establishes as a right of workers the “reduction of risks inherent to work, by means of health, hygiene and safety rules”. This is to be read together with article 158, single paragraph letters a) and b), of the CLT (“Consolidated Labor Laws” or Brazilian Labor Code) which determines the possibility of taking disciplinary measures against the worker who refuses to observe the instructions regarding the precautions to be taken in order to avoid accidents at work or occupational diseases, or refuses to use safety equipment, through the analogical interpretation of vaccination as protection of physical integrity, both individual and collective.
In this vein, the theory that because the State has authorized compulsory vaccination grants companies the right to impose vaccination on its own employees. According to this understanding, bearing in mind the employer’s duty to ensure the protection of its employees, individually and collectively, against professional risks – including risks related to air contamination and biological risks as provided for in Conventions 148 and 155 of the International Labor Organization – the employer may apply disciplinary sanctions, including dismissal, to employees who, despite being fully aware of the risks that their conduct would represent for themselves and for other workers, unjustifiably refuse to undergo vaccination (Feire Gisela da Silva, https://www.conjur.com.br/2021-jan-15/gisela-freire-exigencia-vacinacao-poder-diretivo-empregador.)
Another part of the studies considers the dismissal of the employee to be illegitimate and a violation of the principle of legality and the right to work, given the absence of a specific law that establishes vaccination as a requirement for maintenance or admission to employment. In other words, the employee´s refusal to vaccinate could not possibly represent a case of serious misconduct and cannot therefore legally lead to a disciplinary dismissal, since this could not be considered dismissal without just cause either, as this would rightfully be considered a discriminatory dismissal (Calvet, Otavio Torres. Poder diretivo, vacinação obrigatória e justa causa. Conjur – Consultor Jurídico. 12 de janeiro de 2021. Available at: https://www.conjur.com.br/2021-jan-12/trabalho-contemporaneo-poder-diretivo-vacinacao-obrigatoria-justa-causa).
The law community is currently struggling to establish universally valid solutions in the multifaceted world of work. The variables are numerous: the typology of the function in question, the economic-productive sector, the size of the company, the economic condition of the company, etc. However, considering the nature of the employment relationship, the possibility of dismissing a worker who refuses vaccination is not contemplated unless it is a requirement for the exercise of his duties, and such requirement is provided by law or determination of a competent body. Therefore, the path to demonstrate that vaccination would be the only possible, and above all indispensable, measure for the protection of his or her health and that of other employees.
In the absence of a specific legislative determination, as foreseen in the STF pronouncement, the only reasonable path to follow is that of a company policy that adopts all the appropriate measures for the maintenance of employment: first, remote work, when possible or, otherwise, allowing the worker to perform his duties while in isolation. When such solutions are impracticable and: 1) all security measures imposed by legislative determination or in the course of collective bargaining have been adopted; 2) there is a medical determination that indicates the presence of a considerable risk of infection in the work environment; 3) it is not possible to suspend the contract (without the right to retribution) pending the creation of the so-called “herd immunity”, we deem the non-disciplinary dismissal an appropriate measure, as determined by the supervening excessive onerousness of the contract and, therefore, in this case non-discriminatory.