Hungary: Mandatory vaccination as a term and condition of employment

Introduction

Government Decree 598/2021 (the Decree) has allowed employers to order their employees to be vaccinated against covid-19 since 15 November 2021. Since it came into force, the Decree has been the subject of much discussion and interpretation by legal practitioners and commentators.

In Hungary, compulsory vaccination is generally a state responsibility. Under normal conditions, the ministry responsible for healthcare and the national chief medical officer may order compulsory vaccination. In order to prevent or mitigate the consequences of a human epidemic, the government may derogate¹ from the effective legislation, which has been the case since the outbreak of the covid-19 pandemic. Due to the fact that vaccines have been available in sufficient quantities, yet the willingness among citizens to vaccinate themselves has not been particularly high and the country was hit hard by the fourth wave, the government decided to make vaccines compulsory in several sectors (eg, the healthcare sector, the national public and higher education sector, the social sector and the public administration sector). In other sectors, the government has empowered employers to define vaccination as a term and condition of employment.

This article provides a short overview of the main rules and possible issues relating to compulsory vaccination as a working condition in line with the Decree.

Scope of decree

Overall, employers are entitled to prescribe vaccination as a precondition of work in certain jobs. As a consequence, employees who cannot prove that they have been vaccinated may be declared to be unfit for work. According to the Decree, the sole purpose of the mandatory vaccine uptake is the protection of employees' health. Employers may only prescribe compulsory vaccination for employees who are affected by, or at risk from, covid-19. Hence, employers must determine the vulnerable group of employees by considering the characteristics of the workplace and the job from the perspective of the pandemic in their labour safety risk assessment.²

Information obligation and certification requirements

Based on the result of the labour safety risk assessment, if employers order compulsory vaccination, they must inform the identified group of vulnerable employees of:

• the ordered vaccine mandate,
• the deadline by which vaccination must have taken place; and
• the possible consequences of non-compliance.

It is advisable to inform the concerned employees on potential exemptions, but this is not a requirement of the Decree. Only health grounds may serve as an exemption from compulsory vaccination.

The information notice must be written either in paper or electronic (including email) format. It is recommended to ensure proof of receipt, which is essential if employers intend to apply penalties for non-compliance. For the sake of legitimate employment (ie, the guarantee of working environment health and safety), employers must make sure that the employees concerned get the vaccine. Therefore, employees must certify their vaccination within the given deadline set out by the Decree. They may show their EU digital covid-19 certificate or Hungarian covid-19 certificate, or other documents that are listed in the Decree, in addition to their identity card.

The Decree authorises employers to process employees' health-related data in relation to vaccination.

Possible penalties

If employees fail to prove their vaccination by the given deadline, employers may apply only the penalties determined by the Decree.

The possible penalties for non-compliance have been heavily debated among practitioners, since the provisions of the Decree are not entirely clear in this regard. The majority considers that the Decree qualifies lex specialis, so the legal consequences set out by the Hungarian Labour Code (ie, termination of employment for non-compliance with employers' instructions), as a lex generalis, may not be applied.

Accordingly, employers may order unpaid leave to employees who refuse to take up vaccination for a period of up to one year. If the employee does not prove either that they have been vaccinated during the term of the unpaid leave or that they have a medical exemption, the employer may terminate the employment relationship with immediate effect after the expiration of the one-year period.

Employees who cannot undergo vaccination for health reasons must substantiate such reasons with a medical professional's opinion. For the sake of exemption, the medical examination must be initiated by the employee. It is not entirely clear which medical conditions may contraindicate the vaccination and it will be primarily up to the occupation health professional to decide. The Decree does not regulate the process to be followed if an employee cannot get the vaccine for health reasons. For the sake of maintaining the employment relationship, the parties must find a solution, which maybe another type of job – if there are any available – suitable for the exempted employee, or the situation could lead to the termination of the employment relationship.

Employer's liability

Another debated area is the potential liability of the employer for potential health damages suffered by employees in connection with the jab. In Hungary, employers' liability in connection with the caused damage is objective (no fault). Employers must provide compensation for damages caused to employees in connection with the employment relationship. Employers only may be exempted from liability if they can prove that:

• the damage was caused by circumstances beyond their control;
• they did not expect the damage to occur; and
• there was no reasonable cause to take action to prevent or mitigate the damage.

This leads to the question of whether employers are supposed to anticipate any adverse reactions to the covid-19 vaccination, and whether such reactions fall within their control. According to the Curia of Hungary, damage only occurs beyond the employer's control if the employer has neither influence nor the possibility to exercise influence over the situation causing the damage. Based on the lack of case law, it is beyond the employer's control if an employee suffers any health damage in connection with a vaccine that has been authorised by the competent medicine agency in Hungary. Due to the scientific evidence that the authorised vaccines have a protective effect by producing antibodies against covid-19, employers should be confident in the expertise of the competent medical authority (in respect of the effectiveness and safety of the vaccine) and healthcare professionals (who should be aware of the state of health of the patient). Therefore, this raises issues about the medical health profession, because the possibility of vaccination and the type of the chosen vaccine are subject to medical competence.

Comment

The legislation has attempted to follow the waves of the pandemic and prevent its further spread. In this context, the initiative to give employers the right to make the covid-19 vaccination compulsory in respect of their employees has created several debates.

In the private sector, Hungarian employers are facing a stark choice between protecting their employees (ie, vaccinating them) or losing them as a consequence of persistent vaccine hesitancy. Initial experience shows that few employers have made use of this option, partly due to the consequential workforce shortage. Employers are wary of losing valuable workforce if they compel unwilling employees to be vaccinated. Therefore, employers usually try to use softer measures, such as incentivising vaccinations and use regular testing to protect employees.

¹ Section 51/A of Act CXXVIII of 2011 concerning disaster management.
² The labour safety risk assessment is a general obligation of employers based on Act XCIII of 1993 on Labour Safety.

A version of this article was first published on ILO, 19.01.2022.
author: Dániel Gera and Dorottya Gindl