Ombudsman: Make right to work conditional on obtaining vaccination or testing certificate - restrictive, inadequate measure

The Ombudsman specifies on Wednesday that the legislative solutions in the draft laws discussed by the Government that make the exercise of the right to work of staff in health units and residential centers conditional on obtaining the vaccination or testing certificate, with payment of tests to the employee, represents "restrictive measures", being "disproportionate and inappropriate for the purpose pursued".

The Ombudsman transmits in a press release that the institution was notified regarding the unconstitutionality of two draft normative acts in the legislative process: the draft law on the establishment of some measures in the healthcare, during the state of alert, for the staff within some public and private units and the draft emergency ordinance for amending and supplementing Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, regulating the conditioning of the exercise of the right to work of staff working in public or private health facilities and residential centers on obtaining the EU Digital COVID Certificate, agerpres reports.

According to both draft normative acts, the costs of getting tested for the SARS-CoV-2 virus are borne by the personnel within the targeted units, except for the personnel who have a medical recommendation for non-vaccination.

"The draft law (...) provides for the penalty of the suspension of individual employment contracts, respectively of legal termination of employment contracts, in case the suspension period accumulates 30 days in case the employees do not present the digital certificate under the conditions stipulated by these normative acts, and the draft emergency ordinance (...) establishes the prohibition of access to residential centers for staff who do not present the digital certificate or, as the case may be, the prohibition of carrying out activities that involve contact with beneficiaries," reads the release.

The Ombudsman adds that these legislative solutions represent "restrictive measures" and claims that, according to art. 53 paragraph (1) of the Constitution, the restriction of the exercise of certain rights and freedoms can be made only by law, noting that last year the Constitutional Court issued several decisions stating that such a restriction can be made only by law as an approved normative act by Parliament, not by emergency ordinances or administrative acts.

The institution further maintains that the legislative solutions, in the proposed form, infringe the constitutional provision regarding the right to work and social protection of labor - as per art. 41, the prohibition of discrimination on the basis of wealth - provided for in art. 16 paragraph (1) and art. 4 and the violation of the right of the beneficiaries from the residential centers to social assistance measures - provided for in art. 47 paragraph (2) the final thesis of the Fundamental Law.

The analysis of the Ombudsman regarding the two draft normative acts in the legislative process was sent to the Prime Minister, the Interim Minister of Health and the Minister of Labor and Social Protection.