COVID-19 VACCINATIONS, FREEDOM OF CHOICE AND PUBLIC POLICY
The pandemic caused by the novel coronavirus and the disease (officially referred to as Covid-19 by the World Health Organization) has been creating havoc globally for a little over a year now. For many of us living in the 21st century, the concept of a pandemic is, just like the novel coronavirus itself, very new and still carries a lot of uncertainties.
While the UAE, like many other states around the world, successfully curbed the spread of the disease through very strict lockdowns, it is now becoming very clear that this disease is here to stay and, considering the recent mutations discovered in the United Kingdom and South African, is constantly evolving to ensure its survival and infectiousness. While lockdowns have served as an effective short to medium term solution, no economy, regardless of its strength, can afford to continue enforcing lockdowns over longer periods of time. This is of course in addition to related issues like mental and physical well-being of individuals (particularly children who have now spent close to a year without in-class learning and much needed social interaction and mental stimulation and to the very vulnerable members of the population).
To effectively counter the spread of the novel coronavirus and to end the pandemic, scientists across the world started development work on vaccines as early as January 2020 and despite some concerns around the safety and efficacy of such vaccines, it is an unrivalled scientific achievement that the world now has several approved vaccines which have been declared safe and effective against the novel coronavirus.
Global leaders and governments have also now reached the conclusion that herd immunity acquired through vaccination may be the only effective and sustainable way out of this pandemic. However along with a clear desire and anxiousness to get inoculated by the majority of the population, there is a sizeable percentage in the population around the world who are still hesitant to get vaccinated mainly due to the safety concerns relating to the speed at which the vaccines have been developed as well as certain false and unsubstantiated anti-vaccination campaigns, which are mainly being broadcasted on social media platforms.
The benefits of vaccination, particularly considering the pandemic, and the status and data relating to efficacy and safety of vaccines and in particular the vaccines developed and approved for the novel coronavirus are well documented. This article will focus on some very pertinent questions in the present circumstances, that is, can vaccinations against the novel coronavirus be made mandatory and how does this impact an individual’s rights and freedom of choice.
The applicable legislations in the UAE which relate to infectious diseases and vaccinations are the Federal Law No. (27) of 1981 Concerning Communicable Disease Prevention (the Prevention of Communicable Disease Law) (the “1981 Law”), Federal Law No. 14 of 2014 Concerning the Prevention of Communicable Diseases (the “2014 Law”) and the Cabinet Resolution No. (17) of 2020 Regulating the Violations of Precautionary Measures and Instructions and Duties Imposed to Curb the Spread of Novel Coronavirus (the Cabinet Resolution) (the “Resolution”).
Article 22(1) of the 1981 Law provides “In areas of occurrence or possible occurrence of smallpox, cholera, diphtheria, poliomyelitis, measles, tuberculosis, typhoid or any other epidemic disease that can be prevented by vaccination or immunisation, the Ministry may issue an announcement to be published in the Official Gazette and other media, specifying the infected area and compelling any person in the area to receive mandatory vaccination and immunisation for the prevention of the disease.”
The 2014 Law was issued after the Middle East Respiratory Syndrom broke out in various parts of the world including the Middle East and hence the 2014 Law was issued to widen the scope of what diseases were to be included in the list of communicable diseases and to set out the penalties for any violations relating to quarantine, treatment and reporting. The 2014 Law provides for a broad list of communicable diseases including influenza, HIV/AIDS and MERS, also a form of coronavirus. Therefore, the 1981 Law read with the 2014 Law would mean that the scope of compulsory vaccination will also apply to communicable diseases as set out in the 2014 Law including coronaviruses.
Furthermore, Article 1(1) of the Resolution states that “A natural or legal person shall not violate the precautionary and preventive measures and instructions and duties regarding health and safety preservation in order to control the risk of spread of the coronavirus issued by the Ministry of Health and Prevention, Ministry of Interior and the National Emergency, Crisis and Disasters Management Authority.”
Considering the provisions of the 1981 Law, the 2014 Law and the Resolution, it is sufficiently clear that the UAE government has the right and authority to require for compulsory vaccinations and to act against any individual or entity deemed guilty of violating any precautionary measures imposed by the government.
The UAE approved the vaccination for the novel coronavirus in the second week of December 2020 and a nation-wide vaccination campaign was launched in the first week of January 2021 being strongly endorsed by His Highness Sheikh Mohamed Bin Zayed Al Nayhan and His Highness Sheikh Mohamed Bin Rashid Al Makhtoum.
In our experience, amongst other queries relating to the legal issues relating to the precautionary measures against the novel coronavirus and the vaccination campaign, a few queries have been raised repeatedly and, in this article, we aim to address the same.
Can the government make it mandatory for an individual to take the vaccination against the novel coronavirus?
In short, the answer is yes, particularly considering the applicable provisions of the 1981 Law, the 2014 Law and the Resolution. However, the UAE government has taken a safety-first approach and at present the vaccination is not strictly mandatory. Therefore, for instance individuals with certain medical conditions, individuals on certain medications, children below the age of 16 and women looking to get pregnant in the next three months are at present excluded from the vaccination campaign eligibility. For a conclusive list of individuals who are not eligible for vaccination, contact should be made with the local health authorities.
Furthermore, as per the Federal Authority for Government Human Resources (“FAHR”), all ministry and federal government employees must conduct a polymerase chain reaction (“PCR”) tests every seven days at the employee’s own cost. The only exemption from this requirement is for employees who have taken the two doses of the vaccination or for employees who are not eligible for vaccination in which case the PCR test will be conducted at the employer’s cost.
The above-stated requirement is also extended to outsourced and public service companies contracted by federal government entities. Furthermore, any consultant and/or expert visiting any government offices must present a PCR negative test taken within three days of such visit.
Even hospitals, in Abu Dhabi, now require a PCR negative test issued within 24 hours of inpatient visits. It is also likely that the directions of the federal government will also be followed by other government department. For instance, Ajman has made it compulsory for all government employees to conduct PCR tests every seven days at their own cost, the only exception being employees who have been vaccinated with both doses of the vaccine.
Therefore, despite having the authority to make the vaccination mandatory, the UAE government has still offered citizens and residents the choice to get vaccinated. The requirements for conducting PCR tests for unvaccinated employees is to ensure that the spread of the novel coronavirus, considering the new and highly infectious mutations, is adequately controlled and the overall health, safety and well-being of society at large is ensured.
We also understand that several private sector businesses, particularly in Abu Dhabi, are adopting FAHR’s policy voluntarily to ensure that the health and safety of its employees and their families is not comprised while also ensuring that any business or contractual relationships with government entities continue smoothly.
Can my employer force me to pay for the weekly PCR test if I refuse to be vaccinated?
While the directions of FAHR for federal government employees are clear. Similar policies may also be enforced in the private sector, provided they are applicable across the board and are not subject to criterion like role, seniority, race, religion etc in which case the same may be deemed discriminatory and hence illegal. It is important to note that employment policies, even for private sector entities, are usually approved by the Ministry of Human Resources and Emiratization (“MOHRE”), therefore where a policy has been approved by the MOHRE it will be binding and applicable on the employees. Employees will most likely be unable to establish that the extra weekly costs of undertaking the PCR testing is a reason for not complying with the required policies as the employer in the private sector would base such policies on employee safety, wider public health considerations, encouraging vaccination and ensuring smooth business operations.
Is mandatory vaccination or compulsory payment of PCR tests an encroachment on my freedom and rights?
Fundamental rights such as freedom of expression, freedom of movement and freedom of business are essential rights which are afforded protection in a state’s constitution and are a cornerstone of modern civilized societies. However, there are certain instances where such freedom may be curtailed for the greater benefit of the state or for a particular segment of the society or the society at large. Common justifications for curtailing certain fundamental rights are public policy, public health, national security and environmental health and safety.
As stated above, the UAE government has the full authority to mandate vaccinations and PCR tests on a compulsory basis for all segments of the society. The underlying rationale for this is public health and the wider economic implications of the novel coronavirus pandemic. A unified and uniform strategy and plan is required to counter the pandemic and to eventually end it not only within the UAE but also globally.
As per the recommendations of epidemiologists, sixty to seventy of a country’s population must be vaccinated to achieve herd immunity and to control and stop the transmission of the novel coronavirus. The UAE’s ambitious target of vaccinating fifty percent of the population by the first quarter of 2021 is in line with its ambition to achieve herd immunity as soon as is possible. This is essential to not only ensuring public health and safety but to also ensure that the economy recovers from the disastrous effects of the pandemic. In this respect mandatory vaccination policies would be considered as a justifiable measure for the benefit of the society at large and would not a challengeable encroachment of fundamental rights.
