Can an employer require an employee to be vaccinated? Can employment be terminated if vaccination is refused?

1. Legal basis and entry into force

In the early hours of 29 October 2021, the Government issued Government Decree No. 598/2021 (X.28.) on the protection of workplaces against the coronavirus, which entered into force on 1 November 2021, All Saints’ Day. The purpose of the decree is to ensure that, upon the proposal of employers’ organisations, companies and businesses are authorised to require employees to be vaccinated against the coronavirus as a condition of work if they consider this necessary for the safety of those working there.

1. Personal scope

The Government Decree states that its personal scope covers “persons employed” who are not employees of state or municipal institutions (for whom vaccination is mandatory under another decree, Government Decree No. 599/2021 (X.28.)). This means that, in practice, the most important subjects of the Government Decree are employees as defined in the Hungarian Labour Code, i.e. the overwhelming majority of persons employed in Hungary. Therefore, since this group of employed persons is at the centre of the regulation, in the following we will refer to the group defined by the Government Decree as “persons employed” according to its actual substantive meaning, i.e. as employees.

III. Vaccination as a condition of work

According to the regulation, as a general rule, the employer may, in order to protect health and taking into account the specific characteristics of the workplace and the position, make vaccination a condition of work for employees who have not previously been vaccinated.

What does it mean for vaccination to be designated as a condition of work? In its measure, the employer determines the deadline for receiving the vaccine, which must be at least 45 days in the case of a single-dose vaccine (e.g. Janssen) and, in the case of a two-dose vaccine (most vaccines, such as Pfizer), at least 45 days for receiving the first dose. In the case of a two-dose vaccine, the second dose must be received at the time specified by the vaccinating physician.

1. How does the employer inform the employee that vaccination is mandatory?

In practice, the employer’s “measure” referred to in the decree may take the form of an employer’s instruction under the Labour Code. This may be issued electronically (by email) or on paper — therefore oral notification is not sufficient — and the instruction must include the deadlines set out in Section III above for single-dose and two-dose vaccines. It is also important to mention that the employer must inform the employee of the possible legal consequences of failing to receive the vaccination. We address this in more detail below in Section VI.

1. When is it not mandatory to receive the vaccination?

Although only within a narrow scope, the Government Decree allows for vaccination not to be mandatory for everyone. This exception is as follows: an employee may not be required to receive the vaccination if it is contraindicated for health reasons and this is supported by a medical opinion. Such medical opinion is issued, at the employee’s request, by the specialist physician of the occupational health service competent according to the employer, or, in the absence thereof, by another physician authorised to assess the employee’s medical fitness for the activity performed within the employment relationship, or, in the absence thereof, by the general practitioner.

1. Legal consequences if vaccination is not received: can employment be terminated if vaccination is refused?

Taking into account the principle of gradualness, the Government Decree attaches essentially two different legal consequences to the refusal of vaccination. As a first step, the milder legal consequence applies, namely placing the employee on unpaid leave. If this does not achieve the desired result, as a second step the employee’s employment may even be terminated with immediate effect. These detailed rules are as follows:

1. Unpaid leave

If the employee has not received the vaccination within the deadline set by the employer, the employer may order unpaid leave for the employee, unless the employee is exempt from receiving the vaccination due to the exceptions described in Section V above. If, after unpaid leave has been ordered for this reason, the employee receives the vaccination, the employer shall terminate the unpaid leave without delay.

2. Termination with immediate effect

The employer may terminate the employee’s legal relationship by release from service or by termination with immediate effect if one year has elapsed from the ordering of unpaid leave for this reason, and

1. a) the employee has not certified to the employer that he or she has received the vaccination, and
2. b) the employee does not present the medical opinion concerning any exemption.

VII. Resum

 It is therefore clear that, in parallel with making vaccination mandatory, the legislator has also established a very severe system of negative legal consequences for employees who unlawfully refuse to receive the vaccination: ultimately, even the most serious employer measure, termination with immediate effect, may be applied. The above summary brings together the most important information. If, as an employer or employee, or in connection with another area of law, you require legal advice on this topic, please feel free to contact our law firm.