Introduction
Aruba has started its vaccination campaign against COVID-19 in March of this year. According to the World Health Organization, as per May 21, 2021, a total of 95,997 doses of the COVID-19 vaccine have been administered in Aruba.
There is still a considerable number of people in Aruba that are against COVID-19 vaccinations, mostly based on unproven and medically unconfirmed safety and reliability issues and alleged short/long term side effects of the vaccine.
Recently, a top resort on the island introduced the requirement for job applicants (not for members of the existing staff) to show proof of vaccination. This initiative has further fueled the debate on the extent to which the government or private companies may require proof of vaccination and/or ‘force’ individuals to get vaccinated.
The Dutch Health Council: proof of vaccination as a means of persuasion
The Dutch Health Council (DHC) has issued an advise in February of 2021 on the ethical and legal aspects of COVID-19 vaccinations, at the request of the Ministry of Public Health Well-being and Sport.
The DHC advises that the government and private companies are allowed to persuade (not force) individuals to get vaccinated by limiting the options available to them, for instance by requesting proof of vaccination for entry. The government and private companies may request proof of vaccination from customers, guests or employees, provided all of the following requirements are met:
- Proof of vaccination should be effective and necessary to achieve the desired outcome
- Proof of vaccination should be proportional and the least invasive measure in achieving the contemplated result
- The adverse effects of proof of vaccination should be kept at a minimum
- Proof of vaccination may not lead to unjustified exclusion (e.g. individuals that cannot get vaccinated due to medical reasons) or discrimination
- Privacy laws should be respected. Information on the status of vaccination of individuals may qualify as confidential medical information which may not be disclosed to third parties (e.g. the employer) without the individual’s express consent (Article 7:457 ACC). The employer furthermore requires the explicit consent of the employee to register his or her vaccination status digitally or in hard copy
- Establishments should (re)evaluate the measure from time to time in order to determine whether all the requirements are met. As Aruba draws closer to “herd immunity”, the necessity to show proof of vaccination may reduce and become unjustified
Proof of vaccination for entering the workplace
The benefits of proof of vaccination for employees are many. The employer has the obligation to provide a safe working environment for its employees. If he fails to do so, he could be held liable for bodily injury or death of an employee (Article 7A:1614x Aruba Civil Code). Other valid reasons are lower sick leaves, a higher number of clients/guests, and a reduced chance of an outbreak at the workplace, as well as competition on a global scale.
The DHC advises however that the requirement to provide proof of vaccination in order to enter the workplace would exceed simple persuasion. Hence, there should be a clear and unambiguous added value to require employees to show proof of vaccination. The consequences for the employee, in case of a refusal, should also be clear (e.g. placement in a different function, or the alternative of working from home).
Vavricka v. Czech Republic: a case for compulsory COVID-19 vaccinations
Aruba has no laws on (compulsory) vaccination. Hence, there is no legal basis for compulsory vaccination in Aruba. Compulsory vaccination is also still widely considered to be an interference with the right(s) of privacy and physical integrity protected under Article 8 of the European Convention on Human Rights (ECHR).
There is however a surprising new development on this subject matter!
On April 8th, 2021, the European Court for Human Rights found the statutory duty in the Czech Republic to vaccinate children against certain known diseases not to be in violation of Article 8 ECHR (Vavricka and others v. the Czech Republic).
The Vavricka decision may indicate a shift toward the acknowledgment that compulsory vaccinations could be deemed as compatible with the ECHR after all.
In regards to COVID-19 vaccinations, the following may be extracted from the Vavricka decision. Compulsory COVID-19 vaccinations could be deemed compatible with the ECHR, if: i) the vaccine is considered safe, ii) vaccination is (indirectly) imposed as a protective measure, iii) the necessary precautions are taken, and iv) compensation is made available in case of injury caused by the vaccine (article).