With the arrival of the vaccine against Covid-19 in Spain, there are many doubts that arise, especially when we are not clear if we want to be vaccinated. The Government does not force those who do not want to get the vaccine to do so, but can companies force vaccinate your employees?
A somewhat tricky debate then opens in legal terms about this possible obligation in various places such as in the workplace.
What can companies do?
Teresa Ezquerra, a lawyer at Abencys, comments that according to the legislation currently in force in Spain regarding health and safety at work, the employer cannot force a worker to be vaccinated.
And it also explains that the employer can, if he wishes, offer his employees the vaccination against diseases not associated with the job, these being the ones who accept said offer voluntarily.
And as specified, as stated by Health, in the country, according to the basic regulation of the autonomy of the patient and of rights and obligations regarding information and clinical documentation, the general rule addresses the non-mandatory nature of vaccination.
Constant legislative changes
From this law firm he remarks that in recent months, due to the pandemic, there have been all kinds of legislative changes and many affect companies.
In this sense, the lawyer does not completely rule out that there may be many more changes such as a legislative amendment with the aim of establishing the obligation to vaccinate its employees in a company, under the provisions of article 12 of Organic Law 4 / 1981, of June 1, of a state of alarm, exception and site that establishes that “The competent authority may adopt by itself, according to the cases, in addition to the measures provided for in the previous articles, those established in the regulations for the fight against infectious diseases ”.
It is also set in the Article 1 of Organic Law 3/1986, of April 14, of special measures in public health that establishes that “In order to protect public health and prevent its loss or deterioration, the health authorities of the different Public Administrations may, within the scope of their powers, adopt the measures provided for in this Law when so required for urgent or necessary health reasons ”.
As currently there is no mandatory vaccination, the lawyers explain that it must be the employer who judicially requires his employees to be vaccinated, and the judges who give the solution, taking into account the circumstances of each specific case.
Court petitions in brief
The issue of the vaccine is still recent and for this reason there have not been requests that materialize judicial requests of this type, but it is on the table, because there are already people (tutors of others especially) refusing to vaccinate the people they care for, but in this case it is not so clear that they can do what they want, for reasons of age and others.
Thus, the lawyer points out that it is foreseeable that as the vaccination process advances, these requests will begin to be produced if we take into account that there are already precedents.
Voluntariness of vaccination
According to the Ministry of Health, without prejudice to the duty of collaboration that falls on individuals, vaccination against Covid-19 will be voluntary, and this, except as provided in Organic Law 3/1986, of April 14, of Special measures in public health.
However, it is considered important to record cases of rejection of vaccination in the Vaccination Registry, with the purpose of knowing the possible reasons for reluctance in different population groups.
Information sheet template and informed consent
In this vaccination plan, informed consent is necessary, with a verbal consensus, except in certain circumstances in which it is done in writing, such as before the administration of vaccinations. in the school environment where parents or guardians are not present, as established by Health.
It is necessary to have the authorization of parents or guardians to administer any vaccine to minors. ”In general, this recommendation for verbal authorization is applicable to the vaccination situation against Covid-19. In the particularity of the vaccination of people who have limited decision-making capacity, the information and authorization in writing from the legal representative or people related to him or her for family or factual reasons is convenient. In the cases of people with cognitive or psychosocial disabilities but with a degree of disability that does not prevent them from making a decision, they will be informed through the appropriate formats and with the necessary support so that the person can make a free decision, in conditions analogous to the others”.
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