Lawyer: Restrictions and vaccination requirements have to be proportionate

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Carri Ginter Source: Siim Lõvi /ERR

Lawyer Carri Ginter said on ETV's current affairs show "Esimene stuudio" that demanding vaccination from the workplace must be justified sufficiently by the employer, and only allowed when there are no alternatives. The coronavirus restrictions established on companies should be proportionate, he added.

"Basically, there are positions where demanding vaccination could be demanded," he said. In that case, the employer must be able to prove that it's not possible to work without the vaccine.

"Every kind of vaccine requirement intrudes upon people's basic rights," Ginter said. "As lawyers, we look at something called proportionality, which means that if there is a legitimate goal of what needs to be achieved with the vaccination and there are no milder measures."

Ginter pointed out, for example, that when a person works with children with cancer, the situation is different from requiring a cashier to be vaccinated.

Ginter noted that, for example, in the case of children with cancer, it is plausible to argue that the immune system and the safety of the children could be compromised and vaccination would safeguard their safety.

On the other hand, Ginter cited university lecturers and lawyers, for example, who had the opportunity to work across the video bridge as an alternative during the restrictions, although there are shortcomings. "And now to say no, we want you to go to the auditorium and force you to be vaccinated, then obviously there is a milder option."

Ginter said that there is no real difference between the arguments of those who refuse to be vaccinated. "If we are talking about EU law or, more broadly, fundamental rights, then regarding medical uncertainty, there is a debate about how dangerous it is or whether it is not dangerous, then it is a justification to choose a safer solution for the general citizen. This means the presumption is that a safer solution is allowed until proven otherwise."

The show's host gave the example of Germany, which requires proof that a child has been vaccinated against various diseases before accepting that child to a nursery. Ginter said that such a measure may be proportionate and justified for children, as it protects other children from becoming infected. However, this is legally different from requiring all adults to be vaccinated, as the loss of a child not being accepted to a nursery is less than when the state intervenes in the life of an independent adult.

Regarding restrictions, Ginter said that the law requires that if the government makes a choice, it must be justified. "If we're going to shut them down, there has to be some explanation, and it can't be just an assumption until the end."

He said that the choices in Estonia have been extreme, as to whether everything is open or closed. "Law says you can go to extremes if there are no reasonable choices in between," he said.

With regard to restrictions on companies, Ginter said that it is possible to apply and monitor less severe restrictions by fining or closing those places that do not comply with them.

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Editor: Roberta Vaino

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