Service – The riddles and plans for mandatory vaccination

The mandatory vaccination should come into effect in just under three weeks. The schedule until then is tight. The draft law will be discussed with experts in the health committee on Monday. The law is due to be passed in the National Council on Thursday. If the Federal Council does not object to what is to be assumed in its session on February 3, nothing stands in the way of compulsory vaccination.

There are still uncertainties surrounding the much-discussed legislative proposal, especially when it comes to its implementation. In other respects, however, the situation is a little clearer. An overview.

  • How is compulsory vaccination checked?

The original plan was: once a quarter, on “vaccination deadlines”, a check is carried out to determine whether someone has been vaccinated or has entered a reason for an exception in the central vaccination register. The first deadline should be March 15th. However, according to Elga GmbH, the technical implementation will not be possible until April at the earliest.

Until then, a kind of “mandatory vaccination light” could be introduced. According to Turquoise-Green, the compulsory vaccination should initially be a control offense: As with traffic offenses, police officers should carry out random checks. According to media reports, fines of around 60 euros are being considered. Details on this could be found in the revised draft law to be discussed in the health committee. It was not yet available at the time of going to press.

  • What are the advantages and disadvantages of the light version?

“The random checks counteract many of the concerns – plain and simple, because you don’t have to keep an eye on and punish all those who are required to be vaccinated,” says constitutional lawyer Christoph Bezemek from the University of Graz. The price for this is that such a procedure is “less effective because there are no comprehensive controls”.

It remains to be seen which administrative costs will already be caused by the light phase. Authorities and courts are demanding significantly more staff and money, as otherwise the procedures relating to mandatory vaccination would not be possible. If police officers start punishing from around mid-February, the first legal remedies will soon end up in the administrative courts.

“Less punishments are less inviting to take legal action,” says Bezemek. However, it cannot be expected that all those punished will simply accept the fine.

  • How does the procedure then work in full expansion?

Before the vaccination deadline, unvaccinated people aged 14 and over who have their main place of residence in Austria will receive a reminder. In it, those affected are requested to be vaccinated by the deadline or to have a reason for an exception entered by a doctor.

Anyone who still does not meet these requirements on the cut-off date will be punished by the district administrative authority in an abbreviated procedure by means of a penal order. Fines of up to 600 euros are possible. Theoretically, up to 3,600 euros could also be imposed in an orderly procedure: However, this would only be conceivable in extreme cases, constitutional lawyers see few possible applications.

The vaccination may not be enforced with physical force. There are only fines and no substitute imprisonment. The procedure will be discontinued if the person concerned can still be vaccinated.

  • What are the hurdles in the implementation?

The biggest chunks are the technical and administrative implementation. Thousands and thousands of proceedings are expected before the administrative courts. It can be assumed that “the majority of all those punished by the administrative criminal authorities (up to four times a year!) Will take advantage of all possible legal protection options,” declared the presidents of the administrative courts. That could bring the courts, which are already covered with numerous asylum procedures, to their limits.

In addition, there are currently still some open legal questions. About the exceptions. So far, pregnant women, those who have recovered (up to 180 days after infection) and people who cannot be vaccinated “without endangering life or health” have been excluded. It is disputed whether 14 to 18 year olds should not also be excluded. And the question of which doctors are allowed to issue the certificate of exception was still debated.

Different opinions are expressed about the penalties. According to the medical lawyer Karl Stöger, the repeated imposition of penalties due to the prohibition of double punishment could be problematic. Bezemek, however, considers this to be “not dramatic”.

  • What are the consequences under labor law?

Labor law requirements are not met in the Vaccination Act. The rules in the Covid-19 Protective Measures Ordinance are therefore still decisive, says Sascha Obrecht, assistant at the Institute for Labor and Social Law at the University of Vienna. The regulation stipulates 3G evidence (recovered, vaccinated or tested) for the workplace.

Even if the employee is punished according to the Vaccination Act, this has no consequences under labor law. It is an administrative penalty that cannot be used as a reason for dismissal, says Obrecht.

  • Can the employer issue stricter rules?

The Protective Measures Ordinance states that “in justified cases, stricter regulations that go beyond this ordinance can be provided”. But there is “no well-founded case that justifies 2G,” says Obrecht. Even for employees in hospitals and retirement homes, there is no 2G proof, which is also explicitly stated in the ordinance.

“If it is not even required there: Which job should still be a justified case ???”, Says Obrecht. It only seems possible to him that the employer could request a PCR test instead of an antigen for his company if there is a very high risk of infection.

The AUA will introduce a 2G rule for crew personnel from March 1st. Those who have not been vaccinated or recovered will no longer be assigned to services and will lose their salary. He thinks this procedure “even with the introduction of the mandatory vaccination law is inadmissible,” says Obrecht. The released workers could sue for their wages “and will have very good chances”.

  • What will apply at universities in the future?

Some student representatives expressed concern that the mandatory vaccination would introduce the 2G rule at universities. As a result, students who do not provide evidence could be excluded from the course of study or even de-registered, so the fear. However, compulsory vaccination does not automatically lead to 2G evidence: the universities can decide for themselves which rules they issue within the framework of their autonomy. However, this autonomy is usually very closely related to the work of the legislature, says Bezemek.

If sufficient exceptions are provided, the constitutional lawyer sees the 2G proof at the universities as unproblematic. The Alpen Adria University of Klagenfurt has already switched its operations to 2G. According to the university, for those students who do not meet 2G, there are alternative ways of assessing performance or participation, such as a hybrid mode, when teaching face-to-face.

  • Will compulsory vaccination hold up legally?

Sooner rather than later, the constitutional court will be concerned with the compulsory vaccination. Bezemek considers the draft to be very well balanced in terms of fundamental rights. The highly infectious, but probably less dangerous Omicron variant, however, raises doubts about the admissibility of the measure. The compulsory vaccination is already too late for the Omikron wave, epidemiologist Gerald Gartlehner and vaccinologist Herwig Kollaritsch made clear.

Similar debates are ongoing in Germany. The chairwoman of the German Ethics Council, Alena Buyx, told “Spiegel” that the members of the council stand for “openness to revision” and that she also recommends that to politics. When the committee recommended an expansion of the compulsory vaccination of professional groups to “significant parts of the population” in December, the statement was “essentially written under the conditions of the Delta variant”.

If the facts change significantly, for example due to Omikron, one also has to “look again at normative assessments as they have been made”: “Anything else would be irresponsible.”

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