Do Mandatory COVID-19 Vaccinations Impact the Rights of International Civil Servant?
Vaccine mandates may impact or even violate the rights of international civil servants. This article briefly explains the framework of rights that could be infringed by an employer's COVID-19 vaccination mandate. It also provides some considerations for staff members and staff associations when they are affected by an employer's measures. It is not intended to be conclusive.
Nothing in this article is legal advice. When in doubt review the relevant rules of your international organization, as rules vary, and seek legal advice.
Government actions related to COVID-19 (quarantines, social distancing requirements and lockdown measures) and measures to ensure that citizens are vaccinated against COVID-19 have directly and indirectly impacted the lives of international civil servants. In particular, staff members have been impacted by new rules and practices implemented by their employers to address COVID-19 and align practices with their host governments.
These practices may include requiring all staff members who work from the employer’s premises to be fully vaccinated against COVID-19, requiring all new employees to be fully vaccinated,[1] or travel restrictions to certain countries due to COVID-19 vaccination status.[2]
Alternatively, some employers may also oblige unvaccinated employees to either work remotely, to wear masks in the office place, or to demonstrate through regular testing that they are not infected with COVID-19.
The relationship between an employer and employee must be built on dignity and respect, and uphold the duty of care. From a legal perspective, it is of no defense for an employer to merely assert that they were intending to follow local law, especially if local norms run afoul of internationally established rights and standards. This is because the conditions of employment of staff are subject exclusively to the organization’s Staff Regulations and to general principles of the international civil service (unless national law is specifically referenced in the organization’s rules).[3]
This article briefly highlights a framework of rights and standards impacted by an organizations’ practices concerning COVID-19 and possible vaccine requirements and provides some considerations for staff members and staff associations who may be affected by an employer’s measures. Given the broad scope of the issues involved, it is not intended to be conclusive.
International Organizations should be Guided by the Siracusa Principles and the Oviedo Convention
International instruments, such as the Siracusa Principles and the Oviedo Convention, provide a strong framework for examining the thorny issues of COVID-19 restrictions and vaccination requirements.
The 1984 Siracusa Principles Set Forth Guidelines on Restricting Rights During an Emergency
The 1984 Siracusa Principles set forth guidelines for governments on the restriction of human rights during an emergency.[4]The 1997 Oviedo Convention is the First Treaty about Human Rights in the Biomedical Field
The 1997 Oviedo Convention [6] is the only international treaty on the protection of human rights in the biomedical field, designed to preserve human dignity rights and freedoms, through a series of principles and prohibitions concerning bioethics, medical research, consent and other topics. It is therefore highly relevant as a framework to examine potential vaccine requirements. The treaty builds on other human rights instruments, such as the International Covenant on Civil and Political Rights. Currently, 29 Council of Europe countries have ratified the Oviedo Convention.
The Oviedo Convention stresses the “primacy of the human being”, declaring that the “interests and welfare of the human being shall prevail over the sole interest of society or science”. In Article 2, the Convention highlights that “[a]n intervention in the health field may only be carried out after the person concerned has given free and informed consent”. This requires the person to be given information “beforehand” about the medical intervention, including its purpose, nature, consequences and risks.
In addition to these instruments, the European Parliament has highlighted that compulsory vaccination potentially impacts the fundamental rights entrenched in the European Union Charter, including the right to integrity, which includes free and informed consent of those undergoing medical treatments, the right to privacy and data protection, the freedom of thought, conscience and religion, and the prohibition of discrimination, among other rights.[7]
During COVID-19, Most Governments Did Not Comply with the Siracusa Principles
Unfortunately, a survey of 51 COVID-19 emergency orders from 39 leading countries appears to demonstrate that most of them did not comply with the Siracusa Principles.[8]
Half of the orders included punitive measures such as criminal sanctions for non-compliance, which are generally viewed as being disproportionate or unnecessary, and at odds with the Siracusa Principles.
Additionally, only half of the orders were of limited duration and nearly none of them provided for judicial review to curtail potential abuse. Finally, less than 15% of the orders even claimed that they had been enacted out of “necessity” or referenced the need for “proportionality” in the emergency response.
Similarly, the text of the Oviedo Convention contains a major caveat, which may weaken its protection of fundamental rights: that no restrictions shall be placed on the exercise of rights unless it has been prescribed by law and is necessary in a democratic society in the interest of public safety, for the protection of public health or for the protection of the rights and freedoms of others.[9]
How should staff members and staff associations claim their fundamental rights in terms of COVID-19 restrictions and compulsory vaccinations?
Staff members and staff associations should refer to international instruments such as the Siracusa Principles and the provisions of the Oviedo Convention when addressing employer practices in this context that may relate to fundamental rights and international standards. Although international instruments may not necessarily directly bind the organization, they should at least inform an employer’s duty of care to its staff.
Outside of the COVID-19 context, there is ample evidence of these principles being operationalized to protect fundamental rights in terms of public health. For example, actions of most governments in the HIV-related context show that the principles of necessity and proportionality and restricting rights only when strictly required by the exigencies of the situation, are fully applicable. UNAIDS has successfully advocated against HIV-related travel restrictions and HIV testing requirements for work and study permits on the basis that they are discriminatory, violate the fundamental right of freedom of movement, and cannot be justified on public health grounds.[10]
Staff Must Be Given Sufficient Information to Make an Informed Decision
The ILO Administrative Tribunal has not yet considered a legal challenge against a mandatory vaccination requirement. However, it has highlighted that in claims alleging negligence and willful misconduct against an employer’s medical service concerning a possible vaccination, a critical issue is whether the employee was provided sufficient information to make an informed decision.[11]
The European Court of Human Rights (ECHR) in V.C. v Slovakia, cited the Explanatory Report to the Oviedo Convention, which states that consent is “considered to be free and informed if it is given on the basis of objective information from the responsible health care professional as to the nature and the potential consequences of the planned intervention or of its alternatives, in the absence of any pressure from anyone."[12]
Staff Members Who Wish to Oppose a Vaccine Mandate Must Object in Writing
In light of the above, if an international civil servant seeks to oppose a compulsory vaccination requirement, it is important for them to record their objections to their organization’s medical service in writing and to provide evidence that refers to their personal situation. For example, some staff members may have a legitimate medical basis to decline a medical intervention. Similarly, the ICSC Standards of Conduct underscores that staff members are entitled to their personal views,[13] including freedom of thought, conscience and religion, but in line with these standards, objections on these grounds should be presented with tact and discretion. In both circumstances, an exemption from any compulsory vaccination requirement should be sought in writing.
It is also generally not advisable for employees to sign forms indicating that they have given informed consent to a medical intervention if instead they feel coerced or if their consent has not been freely given. This is because there is a high bar to demonstrate that an agreement has been vitiated by a breach of the duty of care, good faith, or fraud. It is better instead to record one’s objections with the employer in writing.
Recent Developments Highlight that Informed Consent is Vital
Recent developments demonstrate that employers must respect their employees medical decisions. In July 2022, United States-based health care employees of NorthShore University Health System obtained a $10 million settlement after a dozen former employees filed a lawsuit, claiming that the hospital had improperly denied religious exemptions to a COVID-19 vaccination mandate. This led to hundreds of employees either receiving a vaccination, being terminated from their jobs, or submitting a resignation.[14]
In addition to financial compensation, the settlement included an undertaking to rehire any employees who were terminated from employment for refusing a vaccination. The case is reported as the first example in the United States of a private employer being held responsible for denying religious exemptions to a COVID-19 vaccine mandate.[15]
Moreover, governments have begun to challenge whether COVID-19 vaccination is appropriate for all individuals, undercutting one argument in support of compulsory vaccination. In October 2022, the State of Florida Surgeon General Dr. Joseph A Ladapo issued guidance recommending against males aged 18 to 39 receiving mRNA COVID-19 vaccinations. The guidance was issued following a study indicating an 84% increase in the relative incidence of cardiac-related death among males aged 18 - 39 within 28 days following mRNA vaccination. In September 2022, the Danish Health Authority also issued guidance that people under 50 years of age would not be offered COVID-19 booster vaccinations, unless they had specific vulnerabilities.
Finally, another major argument in favor of obligatory COVID-19 vaccination is that it blocks "transmission" of the virus to others. However, the pharmaceutical companies themselves have now acknowledged that this claim has never been medically proven. During a session of the European Parliament Special Committee on the COVID-19 pandemic, Ms. Janine Small, Pfizer President of International Developed Markets, confirmed that the Pfizer vaccine was not tested on preventing transmission before it entered the market.
The acknowledgement contradicted the claims of Mr. Albert Bourla, Pfizer CEO, that the vaccine would prevent transmission of the virus: "you vaccinate not only for yourself", but "for society" and "to protect those that you love the most" (June 2022), that there "were a lot of indicators right now" that "there is protection against transmission" (February 2021) (when asked by a newscaster if it was likely that after two doses a person could infect others) and that "more concrete data" would be available to show that the mRNA vaccination blocks transmission of the virus (January 2021).
If a COVID-19 vaccination does not prevent transmission of the virus, it cannot be argued that individuals must take the vaccination to protect other colleagues in their work environment from infection.
Infringements of Rights May Set a Negative Precedent
For staff associations, it is important to ensure that organizations uphold their duty of care to staff when dealing with requests for exemptions from any compulsory medical interventions because infringements of rights could set a negative precedent for other staff. The ILOAT has found that organizations may reassign a position to a duty station for which the incumbent is not medically fit to work and this may well lead to the termination of the staff member’s appointment.[16] In such circumstances, it is important for staff associations to ensure that opportunities for reassignment to suitable duty stations are considered by management and when no reassignment is available that indemnities set out under the organization’s rules are paid.
Similarly, for organizations seeking to promote the uptake of a particular medical intervention, there are other elements such as providing easy and free access, educational materials and organizational leadership that can contribute to such a goal.[17]
When dealing with questions concerning mandatory vaccine requirements for COVID-19 it is important to bear in mind the words of the late Mr. Jose Luis Martin Gascon, the Human Rights Chairperson of the Philippines, who stated that human rights are enjoyed in community with others, which conflicts with a “two-tier system where one class of people, vaccinated, are allowed every opportunity, while another set of people are denied certain rights."[18]
[5] N. Sun, Applying Siracusa, Health and Human Rights Journal, 2020 Jun; 22(1) 387-390.
[7] European Parliament Briefing, “Legal Issues Surrounding Compulsory COVID-19 Vaccination”, dated 17 March 2022, available at https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/729309/EPRS_BRI(2022)729309_EN.pdf
[10] UNAIDS, “Still Not Welcome: HIV-Related Travel Restrictions”, 2019, available at https://www.unaids.org/sites/default/files/media_asset/hiv-related-travel-restrictions-explainer_en.pdf (In particular, UNAIDS highlighted that travel restrictions based on HIV status fuel stigma against people living with HIV and that there is no evidence that people living with HIV engage in riskier behaviours than people who are not living with HIV. UNAIDS also opposes mandatory HIV testing and restrictions that limit or restrict movement based on HIV-positive status.)
[13] ICSC Standards of Conduct (2013), paras 9 – 10.
[14] L. Schencker, “NorthShore agrees to pay $10.3 million settlement in COVID-19 vaccine lawsuit over religious exemptions”, dated 2 August 2022, available at https://www.chicagotribune.com/business/ct-biz-northshore-employee-covid-vaccine-settlement-20220801-hbqgrua6xnczbojhusupqy4nq4-story.html
[15] International financial firms, Goldman Sachs, also recently announced that employees may enter its offices in the company’s Americas offices regardless of vaccination status after competitor Morgan Stanley announced similar measures. See D. Ennis, “Goldman Sachs, Morgan Stanley Drop Vaccine Requirements”, dated 31 August 2022, available at https://www.bankingdive.com/news/goldman-sachs-morgan-stanley-drop-covid-vaccine-requirement-september-office-return-nyc-cdc/630891/
[16] ILOAT Judgment 4173, cons. 15-16.
[18] B-SIDE Podcast] The Siracusa Principles and protecting the unvaccinated from discrimination, 23 August 2021, available at https://www.bworldonline.com/podcast/2021/08/23/390902/b-side-podcast-the-siracusa-principles-and-protecting-the-unvaccinated-from-discrimination/