Vaccination som krav för att arbeta – en förutsättning för en god arbetsmiljö eller en integritetsinskränkning? : - Om vaccinationskrav mot covid-19 i förhållande till arbetsgivarens skyldigheter och arbetstagarens integritet
Sammanfattning: Since the beginning of 2020, the ongoing covid-19-pandemic has dictated the way of life. Globally the covid-19-pandemic has affected every level of society, not least at the workplace. More and more countries are introducing statutory vaccination requirements for employees. For now, statutory vaccination requirements for employees are not in order in Sweden even though an increasing number of employers require vaccination against covid-19. The issue of whether the employer can require vaccination against covid-19 is a controversial topic, yet to be tried in court. The thesis addresses the issue of mandatory vaccination concerning the employer’s obligations and the integrity of the employee. With the conflict of interest as a starting point, the thesis examines Swedish law to answer whether vaccination requirements from the employer are according to the law. Initially, the employer’s general obligations regarding the working environment, what the employer’s obligations are regarding the prevention of spreading covid-19, and what measures the employer can take to fulfill their obligations are examined. Secondly, the thesis examines if a vaccination requirement is an interference with the protection of the employee’s integrity and if such interference can be acceptable. Thereafter using three typical cases the thesis discusses whether employers can require vaccination against covid-19 and in what situation, and what measures the employer can take if an employee or jobseeker opposes the requirements. To answer these questions the main material examined in the thesis is the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, the Instrument of Government, the Work Environment Act, the Employment Protection Act, the Health and Medical Services Act, the General Data Protection Regulation, case law from the European Court of Human Rights, Court of Justice of the European Union and the Swedish labour court and relevant legislative history. The thesis finds that due to the employer’s obligations the employer must take all measures to avoid and minimize the risk of accidents and illness. Besides the obligations regarding the working environment and the employee’s wellbeing employers in health care also have obligations to provide patient-safe care to prevent healthcare injuries. However, the measures should not be disproportionate to the sought outcome. In the event of major risks to life and health, the employer must take far-reaching measures. Regarding the extent of the employer’s obligation, the legal situation is unclear. Furthermore, the thesis finds that the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, and the Instrument of Government 3 covers vaccination requirements. Interferences with the protection of bodily integrity can be justified if, after a proportionality assessment, they meet the requirements of legality, satisfy a legitimate aim, and are necessary for a democratic society. Moreover, the thesis finds that employers, depending on the nature of the work and the degree of risk of infection, can require vaccination against covid-19. Other important factors that affect the employer’s ability to set vaccination requirements are whether it is possible to take other less intrusive preventive measures and whether the risk of infection in each task constitutes a real risk to life or health. The thesis finds that the employer, if there is a great risk of infection, can relocate employees and ultimately dismiss employees who do not meet the requirements. Withal the thesis finds that relocation or dismissal is unlawful if the risks of infection are minimal and can be prevented by less intrusive measures.
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