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No jab, no paycheck We asked medical law experts if Moscow’s mandatory vaccination campaign is legal

Source: Meduza

On June 16, officials in Moscow, the Moscow region, and later the Kemerovo region announced mandatory campaigns to vaccinate 60 percent of workers in the public and service sectors against COVID-19 by mid-August (employers will be responsible for making sure this happens). Officials maintained that without mandatory vaccination, it will be very difficult to cope with the increasing number of coronavirus cases. But are these campaigns lawful? And what are the legal consequences for refusing to get vaccinated? We asked two medical law experts to weigh in on these and other important questions. 

Please note. Regardless of the extent to which these mandatory vaccination campaigns comply with Russian legislation, Meduza still recommends that you get vaccinated against COVID-19.

Polina Gabay

Lawyer and founder of the company Faculty of Medical Law

“Mandatory vaccination” isn’t a legal term. In the legislation — and specifically in the law “On Immunization” — it says that any person can refuse vaccination, it’s voluntary.

There is a national vaccination schedule that applies to clearly defined categories of people. Refusing these vaccines can lead to suspension from work or a temporary rejection of admission to an educational institution.

If we’re talking about the former, it doesn’t concern all workers, only those identified in government decree No. 825. This list includes a small number of people, such as most medical workers, teachers, and people working with animals. There are certain consequences for people who don’t get the necessary vaccinations. For example, workers might be suspended from their jobs or unvaccinated individuals won’t be hired.

The vaccine against the coronavirus isn’t included in the national vaccination schedule. It’s on the list of vaccinations that are carried out on an epidemiological basis, as determined by the chief state sanitary doctor. So from a legal point of view, there’s a gap in the legislation. For example, catering and commercial workers aren’t included in the No. 825 list, so they can’t face legal repercussions for refusing to get vaccinated.

The decree from Moscow’s chief sanitary doctor on the mandatory vaccination campaign doesn’t outline consequences for workers who refuse the coronavirus vaccine. In my opinion, this is no coincidence. I think both Rospotrebnadzor (the federal consumer protection agency) and the chief state sanitary doctor understand that it’s legally difficult to suspend people from work who aren’t included in the No. 825 list.

The 60 percent target, as opposed to universal vaccination, is also an indirect indicator that Rospotrebnadzor understands that vaccination can’t be mandatory. The rollout must be gradual. If vaccination really were mandatory with such consequences as suspension from work, I think it would apply to all categories of workers. 

Update. On June 17, the Moscow Mayor’s Office announced that it will allow companies to suspend employees without pay for refusing to get vaccinated against COVID-19. Also on June 17, Russia’s Sakhalin region announced a mandatory vaccination campaign for workers in certain sectors, scheduled to begin on June 21. At companies in Sakhalin, management will have the right to suspend employees or switch them to remote work for refusing to get vaccinated; employees will only be allowed to return to work after they get the shot. 

However, it’s obvious that employers charged with ensuring vaccination will take various measures — both legal and illegal — to protect themselves. Because naturally, there will be sanctions for non-compliance with the chief state sanitary doctor’s decree. I think the “covid” articles that were added to the Administrative Code in 2020 wil come into play here. Employees will be suspended despite the fact that this isn’t permitted by law. Or they will be unofficially asked to resign — this is already happening. 

I also think the courts won’t side with the employees, if it comes to this. Even before the coronavirus, case practice on vaccination was hit or miss. And the courts often sided with the employer and the chief state sanitary doctor, recognizing vaccination as mandatory even in very, very dubious cases. Now, during the pandemic, I think it will be very difficult to defend vaccination refusal in court, especially when it comes to individual cases. That said, it’s too early to kick up a fuss. On its own, the chief state sanitary doctor’s decree doesn’t force anyone except employers to do anything.

Alina Chimbireva

Head of the law firm Melegal

Vaccination, like absolutely any other medical intervention, is voluntary. You can’t use physical force to vaccinate someone. However, in this case, the coercive element lies in the fact that you’re free not to get the vaccine, but if you don’t get vaccinated, you will face certain negative consequences.

There is a government decree with a list of jobs and services whose workers can be obliged to get vaccinated. And a few months ago the government added the coronavirus vaccine to the preventive vaccination schedule. If, following the decree from the chief state sanitary doctor, these workers (for example, professionals working in healthcare and education) don’t get vaccinated, they can be suspended from work. 

While it’s illegal to fire them (the Labor Code contains an exhaustive list of grounds for dismissal), workers who refuse the vaccine could be left suspended without pay for years. This is a key lever of pressure. For them, vaccination is formally voluntary — but if you don’t want to get the shot, you can go without a paycheck. 

The legality of mandatory vaccination for those who aren’t included in the government decree is questionable, in my opinion. At the same time, the decree from Moscow’s chief sanctuary doctor includes a very broad list of industries. 

Everything that has happened in connection with the coronavirus in the last two years is rather dubious from the point of view of the law. The chief sanitary doctor’s decree formally corresponds to the law in terms of adoption procedure and form. And so long as it isn’t recognized as invalid by a court, we’re obliged to comply with it. That said, it would be very difficult to challenge it in court — especially in Russia, where there’s a certain bias that favors the position of government agencies. 

At the same time, the state isn’t enforcing it. It’s telling employers to organize vaccination. Then it will turn around and say: “Why did you suspend them from work?” In other words, it won’t be the government decrees that are in violation of workers’ rights — the employers who suspend people from work without a valid reason will be the ones allegedly in violation of the law. 

In a nutshell. The lawyers believe that legally, only people whose professions fall under this government decree are required to get vaccinated. That said, vaccination against the coronavirus is very important — it’s the most effective (and perhaps the only) way to stop the pandemic and save lives.