Although scientists are calling for caution, the news of a vaccine by Pfizer and BioNTech Laboratories with 90% efficiency against covid-19 brings some hope during this health crisis.

The Luxembourg government in October announced that a group within the crisis unit was working on a vaccination strategy. The idea of a mandatory campaign, however, has so far been ruled out. Unlike in other EU members, vaccinations aren't mandatory in the country. But what about companies? Labour law specialist give their opinions. 

Will companies have the right to make covid-19 vaccines mandatory for their employees? 

“This is going to be a big debate,” says Grégory Damy, a labour lawyer at Damy law firm. The employer may want to introduce it to avoid absenteeism, for example. But “the employee will always have the right to opt out.” Then it is the judge’s job to decide whether or not this is justified. According to the lawyer, given the “lack of hindsight on the side effects” of the future vaccine, this right of withdrawal would be “all the more justified”. He reiterates however that this question should not even be on the table at the moment as “initially, the vaccine will not be availbe to everyone.”

Maître Guy Castegnaro, founder of the Castegnaro law firm, is more straightforward: “No, we cannot force an employee to get vaccinated.” For his part, he evokes a violation of the right to physical integrity. 

If employers are looking for grey areas and try to ask the question during a job interview, for instance, the candidate will have the right to refuse an answer, in the name of privacy. 

Do companies have the right to demand a negative test for employees to return to work, in the event of contact with a positive person or after having had symptoms? 

These situations are not comparable, according to Grégory Damy, because the PCR test does not present any risk of side effects or other damage by which the employee could justify their right of withdrawal. 

For Guy Castegnaro, “there is nothing that allows it but also nothing that explicitly forbids it. To me, the employee can refuse it, which again is a matter of privacy and physical integrity, just as you can’t ask a woman for a pregnancy test.”

In some specific areas, such as health and personal care jobs, could the vaccine become mandatory? 

Even for caregivers, Damy believes that the right to opt out can be “legitimate”. Maître Guy Castegnaro confirms that again, such an obligation would contradict the right to physical integrity.  

What do the affected stakeholders in Luxembourg expect? 

Nothing so far. Interviewed by Delano’s sister publication Paperjam, the Centre hospitalier de Luxembourg (CHL), the Centre hospitalier Emile Mayrisch (CHEM) and the Robert Schuman hospitals are waiting to discuss the subject with the Ministry of Health. The Centre hospital du nord (CHdN) did not wish to comment.

“We haven’t even asked that question yet,” says Servior, which runs nursing homes in the country. “Everything about the vaccine is pretty hypothetical.” As for the flu vaccine, like every year, “we offer it, but we don’t have to.” Staff of nursing homes in contact with people at risk are “sensitized” to these subjects, with Servior having a higher proportion of employees vaccinated than in other sectors. It remains to be seen whether or not the covid-19 vaccine will follow a similar trend. 

Can the government decide to make the vaccine mandatory for everyone or part of the population? 

Maître Guy Castegnaro does not exclude this possibility. “It has to be proportional to the goal. It’s a balancing act between two tyopes of freedom: privacy, and the obligation to look after public health,” he says. 

Could other countries make the vaccine mandatory to be able to enter their territory? 

“Every state has different regulations,” says Grégory Damy, who would not be surprised if some decided to do so. A view shared by maître Guy Castegnaro. The probability of this happening among members of the European Union seems lower to him. “This would be seen as an obstacle to the free movement of people within the European Union.” But it is not impossible when looking back at the border closures during the first wave of the pandemic. 

This article was originally published in French on Paperjam.lu and has been translated and edited for Delano.