The Estonian Defense Forces is obligated to maintain battle readiness, which stands for awareness and the ability to react. Introducing the vaccination requirement for EDF members reduced the Covid infection rate in the armed forces by over six times compared to the rest of society, EDF Commander, Gen. Martin Herem writes.
The Tartu Administrative Court on December 8 found that EDF Commander, Gen. Martin Herem had no legal basis for introducing a mandatory Covid vaccination policy in the Estonian Defense Forces (EDF) as well as that the requirement was disproportionate toward EDF members and support staff.
The EDF maintains that the vaccination obligation was permissible and necessary and will be appealing the ruling. The EDF finds that some of its argumentation was not considered in the court's decision.
EDF must maintain battle readiness
The Estonian Defense Forces is obligated to maintain battle readiness, which stands for awareness and the ability to react to threats. No one exempted the EDF from keeping an eye on developments in Russia or readiness to act in case of threats. It is the duty of the EDF commander to ensure that readiness, including by taking necessary measures.
Let us recall that when the EDF introduced the obligation to present a vaccination certificate, Russia was massing troops for its aggression in Ukraine, while Belarus was weaponizing migrants against Latvia, Lithuania and Poland.
Active members of the EDF cannot work remotely in the case of threats and are forced to spend days and weeks working in close proximity to one another. While an outbreak would not have been dangerous in terms of members' health, it would have critically weakened Estonia's situational awareness (intelligence and observation) and ability to respond. Last winter, colds accounted for up to 40 percent of reasons for missed combat duty in the war in Ukraine.
EDF took measures to prevent illness
In 2020, the EDF implemented additional hygiene requirements, testing, restrictions on personnel movement, changes to working hours, and remote work to limit the spread of disease, reduce personnel illness, and thereby maintain combat readiness with a sufficient number of people.
It is impossible to carry out training in the form of remote working. It is similarly not possible to achieve collective training goals if half of troops are out of commission due to illness and suspected illness.
Restrictions on movement meant that some EDF members (such as conscripts) did not see their loved ones for days, weeks or even months on end. In 2021, the possibility of vaccination was created, which the EDF commander decided to use after risk analyses were considered.
Employer has the right to introduce working environment rules
The government's regulation no. 144 provides that employers have three ways to manage risks. They are, ensuring availability of vaccination, checking vaccination [or recovery] certificates and testing staff for illness. The EDF commander used all three. Only employee testing failed to provide the desired result.
Moreover, the phrasing of the EDF commander's order is identical to that of government regulation no. 144, which suggests the court has also passed judgment on the latter's phrasing, according to which employers have the right to check for vaccination certificates. The EDF cannot agree that the way the regulation is phrased and its literal inclusion in the EDF order constitute two different things (obligation to present certificates vs the obligation to be vaccinated).
The EDF believes that if the employer has the right to lay down working environment rules, it must also have the right to enforce them. Requirements need to be based on the Defense Forces Service Act.
The latter differs from the Public Service Act and provides two possibilities. A person must present a document whose submission is required by law or a document whose submission obligation has been established under the law. The obligation to present a vaccination certificate has been established under the law, and according to the Defense Forces Service Act, there was a right to demand it.
Vaccination in the EDF produced brilliant results
Introducing the vaccination requirement for EDF members reduced the Covid infection rate in the armed forces by over six times compared to the rest of society. If before vaccination, dozens of cases of illness or suspected illness were recorded every day, this dropped to a few isolated cases after vaccination started.
Vaccination in the second half of 2021 allowed the EDF to retain the freedom it had before 2020. Starting from January 2022, vaccination was no longer effective against the Omicron strain, while the rate of illness remained lower than in the rest of society and the EDF did not have to isolate members.
If obligations placed upon EDF members to combat the spread of COVID-19 constitute a breach of human rights, several other limitations or obligations accompanying service in the armed forces should be seen as equally unconstitutional.
For example, active members cannot always choose where they live and serve, are not allowed to pursue business activity if it interferes with their service, which decision is up to their commanding officer. Participation in international activities carries the obligation to be vaccinated against several different diseases.
Several active EDF members who refused to be vaccinated against the coronavirus had previously used vaccines, dozens of them in some cases. An active EDF member is not always allowed to leave the country and must report for active duty in a matter of hours, irrespective of normal working time. An active EDF member must not participate in party politics. There are other such limitations.
The EDF will be appealing the Tartu court's decision. Courts have made other decisions in other cases where the aforementioned argumentation has been considered and found that the EDF was in the right.
Editor: Marcus Turovski