A new Infectious Diseases Act (the "Act") came into force on 1 March 2017 in Finland. As a new obligation, Section 48 of the Act stipulates that specific employees and interns in the health care sector must have protection against certain diseases to be able to work with patients. On 1 March 2018, this requirement came into full effect after a one year transition period.
In a time where vaccinations have become controversial and many refuse vaccinations, the Act has been discussed and debated actively in Finland. Questions about the constitutionality of vaccination obligations have been raised and the impacts on employment relationships have been under scrutiny.
Scope of application and contents of the requirement
The requirement of mandatory vaccinations concerns employees who work in premises of social and health care units where customers and patients vulnerable to infectious diseases are treated. The vulnerability is assessed medically, but examples of such patients include patients over 65 years old or less than 12 months old, pregnant women, as well as patients with diseases that significantly weaken the immune system. The requirement also concerns students carrying out their internships.
The Act and the aforementioned new Section 48 stipulates that the employees and interns within the described scope of application must have protection against measles, chickenpox and influenza. In addition, the employees and interns taking care of young babies must have protection against whooping cough. Protection against measles and chickenpox requires either a one-time vaccination or having actually suffered from the disease. In contrast, having had the whooping cough or influenza or receiving their respective vaccinations does not offer lifelong protection against these diseases. Therefore, the whooping cough protection may require booster vaccinations and the influenza vaccination has to be taken annually. Employers are obliged to cover the costs of the vaccinations that are not a part of the national vaccination program.
The entry into force of the Section 48 after the aforementioned transition period has brought up different kinds of interpretations concerning, inter alia, the required timing of the influenza vaccination. It is usually taken in the fall, so it has been debated whether the fall of 2017 or fall of 2018 is the correct timing. Needless to say, by autumn 2018 this will be an item that concerns all employees and employers within the social and health care units.
Particular reasons for exceptions
Now that the Act is in full effect, in certain circumstances employers are allowed to use employees and interns with defective relevant immunizations for a "particular reason". In the government proposal related to this Act, this particular reason has been interpreted to concern, for instance, situations where there is no other professional employee available, the employee is allergic, or there is another reason related to the employee personally, or a situation where it is crucial to get a new employee to start working quickly.
The exemptions are rather broad, considering that the objective of the Act is to secure patients' and customers' health. For example, the Act does not specify how long employers are entitled to use employees with defective immunization in the relevant positions. The Act also leaves for the courts to decide whether the employee can refuse taking an influenza vaccination annually based on, for example, an allergic reaction from years ago. It remains to be seen what kind of threshold can be demanded in the presentation of evidence concerning allergies and other reasons and whether employees can claim compensation if the vaccination causes serious harm to them.
Possible employment law issues
The Constitution of Finland states that everyone has the right to life, personal liberty, integrity and security. Therefore, the vaccinations are, in principle, voluntary for the relevant employees, whereas the aforementioned requirements are mandatory from the employer's perspective. However, some have stated that the Section 48 of the Act violates constitutional rights of the employees and that the vaccinations should truly be voluntary. Some have further argued that a recommendation (i.e. a soft law instrument) would have been a sufficient way to protect the patients and customers and that the influenza vaccination does not even provide full immunity against influenza. Nonetheless, the Act is in force and needs to be abided by.
The employee's right to decline, as well as the aforementioned "particular reasons", may create complex employment law issues as employers are, nevertheless, still obliged to ensure the security of their patients and customers through sufficient immunization. Various parties have taken a stand on the possible solutions. Employee unions have voiced different views on the possibility of layoffs. The Ministry of Social Affairs and Health has stated that the employee's refusal to get vaccinated should not constitute a ground for dismissal. The employer side naturally has a more lenient view towards the possibility of dismissals, as in certain circumstances employers may not have any other option. In the absence of a particular reason for refusal and alternative employment being offered, termination of employment may be the only option. Within this framework and in the absence of relevant case law, each situation should be carefully assessed on a case-by-case basis before taking any steps towards dismissals, layoffs or other similar actions.
Another question is how sufficient immunization can be verified. In practice, employers may have to rely on the information given by the employees themselves. Employers naturally need to observe data protection legislation, but is this enough to ensure patient security?
As presented above, the Act leaves a lot of questions unanswered as well as gives room for interpretation. However, the problem is that the government proposal is rather narrow and does not offer much additional information. Therefore, it may be that in the near future company policies, inner practices and the informing of employees will be the key elements when the Act is being applied. Finally, our prediction is that, in the future, case law will most likely have a significant role when interpreting the Act.