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Can the company force employees to be vaccinated against Covid?

| News | Employment Law and Social Security

Alfredo Aspra and José María Gallego analyse the legal-practical scenario from the employment point of view on the voluntary or compulsory nature of vaccination in Spain in Expansión

From an employment point of view:

Legal context on the voluntary or compulsory nature of vaccination in Spain.

The general principle is that vaccination in Spain, like any other medical or surgical treatment, is governed by the principle of informed consent. In other words, no vaccination or treatment will be compulsory or forced on the patient, but on the contrary, it will require the prior consent and that the patient is willing. In short, any vaccination would require the patient's prior authorisation. This is deduced from article 2.2 of Law 41/2002, of 14th November, the basic law regulating patient autonomy and the rights and obligations regarding clinical information and documentation ("Law 41/2002"), the literal wording of which states:

"Any action in the field of healthcare generally requires the prior consent of the patients or users. Consent, which must be obtained after the patient has received adequate information, shall be given in writing in the cases provided for by law".

However, this general rule of willingness and prior consent of the patient is subject to exceptions that the legislator has expressly included in two regulations. Firstly, Article 12 of Organic Law 4/1981, of 1st June 1981, on states of alarm, emergency and siege ("LO 4/1981"):

"In the cases provided for in paragraphs a) and b) of article four, the competent authority may adopt on its own, depending on the case, in addition to the measures provided for in the previous articles, those established in the regulations for the fight against infectious diseases, the protection of the environment, water and forest fires".

In this sense, article four of the LO 4/1981 includes the following situations:

(a) "Catastrophes, calamities or public misfortunes, such as earthquakes, floods, urban and forest fires or accidents of great magnitude.

(b) Health crises, such as epidemics and serious contamination situations.

And additionally, Organic Law 3/1986, of 14 April 1986, on Special Public Health Measures ("LO 3/1986"):

"The health authorities concerned may adopt measures of recognition, treatment, hospitalisation or control when there are rational indications that suggest the existence of danger to the health of the population due to the specific health situation of a person or group of persons or due to the sanitary conditions in which an activity is carried out".

Thus, health authorities could impose vaccination as a compulsory preventive treatment for certain groups of the population, based on issues that make it possible to assume the existence of a danger to the health of the population. The existence of such superior reasons would not be a novelty in our country, as we have a history of health authorities being obliged to impose a specific vaccination or treatment on certain groups of the population.

In this respect, it is worth highlighting the fourth base of the Law of 25th November 1944, on the Bases of National Health, modified by Law 22/1980, of 24th April, modifying base IV -still in force-, the literal wording of which states:

"Vaccinations against smallpox and diphtheria and against typhoid and paratyphoid infections may be declared compulsory by the Government when, because of the existence of repeated cases of these diseases or because of the current or foreseeable state of the epidemic, it is deemed appropriate. In all other infections where there are means of vaccination of recognised total or partial efficacy and where vaccination is not dangerous, they may be recommended and, if necessary, imposed by the health authorities.

As can be seen, vaccination against smallpox, diphtheria and typhoid and paralytic infections could be declared compulsory by the Government when, due to the existence of repeated cases, it was considered appropriate. Additionally, for purposes of interest, it is worth noting that to safeguard the health of citizens, our Courts have on occasion validated the decisions adopted by the respective Health Departments, with the aim of preventing, as we said, the spread of infectious diseases.


First: Vaccination in Spain is framed within the principle of voluntariness and patient autonomy, whereby the injection of any vaccine or treatment requires the prior express consent and acceptance of the patient. Notwithstanding the above, this principle of voluntariness finds its exception in those circumstances in which, due to its seriousness, with the aim of preserving and safeguarding the health of citizens, the competent Health Authority authorises the compulsory vaccination of a specific group of the population. This power has already been exercised in the past, citing, by way of illustration, infectious situations of tuberculosis or measles as triggers for administrative orders - judicially ratified - for compulsory vaccination.

Second: For the development, organisation and orderly inoculation of the doses provided by the pharmaceutical company, the Interterritorial Council of the National Health System published on 18th December 2020 the document "Vaccination strategy against Covid-19 in Spain". In accordance with the provisions of the document, the vaccine will be voluntary, and a register will be created of all those who refuse to be inoculated with the vaccine. It will also be provided to the corresponding population groups in turn.

You can see the full article in Expansión.

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