The fifth wave of the coronavirus in Spain has triggered a debate on the compulsory vaccination of some professional groups, such as health workers.
A major cause of the controversy over mandatory vaccination is the alarming increase in infections and deaths in old people’s homes – where the vast majority have been fully vaccinated for months.
Legal experts stress that compulsory Covid-19 vaccination for these groups in Spain is unconstitutional under current legislation. They argue for an indirect regulatory framework, such as that introduced in France.
Violation of equality
The Constitutional Court recently ruled on this issue. The court suspended the part of Galician health law which provided for compulsory vaccination of the population. The Court made this ruling following a report by the Spanish Council of State. The report pointed out this circumstance ‘violates the equality of rights and duties of Spanish citizens’ enshrined in the Constitution.
Controlling the pandemic
The Council of State’s report, which is binding but not obligatory, advises the state to draw up an organic law to meet the need to control the pandemic.
In this regard, lawyer Juan Gonzalo Ospina suggested a regulation in which the obligation is considered ‘indirect’. For certain professions or for the exercise of certain activities, ‘the absence of vaccination may lead to the refusal of entry or even to the termination of the employment relationship in the event of refusal’.
The French or Italian model
‘There is a clash between the right to personal integrity and the right to life, to the health of the whole group,” says the lawyer. He advocates adopting models such as those of France or other countries to introduce indirect compulsory vaccination.
In France, Emmanuel Macron’s government introduced a Covid certificate to enter crowded places. In addition, the French Constitutional Council endorsed compulsory vaccination for health personnel. Other countries, such as Italy, have also proposed such a certificate. It is based on the criminalisation of non-vaccinated persons when participating in social events.
Communities divided in Spain
In Spain, the introduction of a digital vaccination certificate allowing access to public places such as bars and restaurants is not currently being considered. However, some sub-regions such as Galicia, the Canary Islands and Cantabria have expressed their support for this. It led to several court rulings on its legality.
Lawyer Ospina stressed “vaccination cannot be imposed directly, but it is necessary to legislate to impose it indirectly”. The lawyer gave the example of unvaccinated civil servants losing their jobs. “You don’t have to get vaccinated, but you lose your right if you don’t,” he said.
Differences in criteria
The Madrid sub-region pointed out this possibility should be accompanied by national legislation that would apply equally to all citizens. Regional Justice Minister Enrique López on Friday insisted on the need for ‘an organic law on pandemics’.
It is high time one was drawn up to make possible, for example, the Covid passport or compulsory vaccination in the event of a pandemic,’ says López. He noted the sub-region has no ‘legal instruments’ to make such compulsory vaccination possible; but has been calling for it for more than a year. He wonders what more it will take before the Council of State, the Supreme Court, the Constitutional Court, the High Courts of Justice, the PP, and Europe will see the need.
Other regional governments, such as those of Galicia, Andalusia, the Canary Islands and Cantabria, have also endorsed this necessity. Other regions, however, such as Catalonia, Castile-La Mancha and the Basque Country, have spoken out against the organic law.
Cantabria’s regional president, Miguel Ángel Revilla, asked the Prime Minister to seek a legal formula to allow obligatory covid vaccination in the regions.
Public Health rejects compulsory vaccination
The Spanish Minister of Health, Carolina Darias, rejects the imposition of vaccination on health and social workers. She says it goes against the strategy of the communities and “the Spanish population is vaccinating en masse”.
According to sources in Public Health, work is being done to contain the infections in old people’s homes and other residential centres for vulnerable people. The current protocols and precautions must be adhered to as far as possible. Also, an analysis is being made of whether new protocols should be added, such as carrying out two diagnostic tests a week for workers who do not want to be vaccinated. Another option is to force them to change jobs so that they do not come into contact with the residents. But above all, Public Health continues to encourage the choice of vaccination to avoid further consequences.
