Ljubljana – The Constitutional Court has stayed the government’s regulation under which state administration employees would have to be either Covid-19 reconvalescent or vaccinated (PC) to come to work starting from Friday. The minister in charge has announced the new rule will thus not come into effect as planned tomorrow.
The contentious regulation decrees that all the state administration employees who will come to work at their employer’s premises be either vaccinated against or recovered from Covid-19 from 1 October.
The rule, adopted by the government two weeks ago, has been challenged by several groups of civil servants, but the Constitutional Court took the decision to stay the regulation pending its final decision on the matter in response to a motion by the PSS police trade union.
The union welcomed the decision, with its boss Rok Cvetko saying the court prevented the government from encroaching on human rights and freedoms, not only of police officers but also of other state administration employees and other citizens.
“I regret the decision, but I will respect it,” Public Administration Minister Boštjan Koritnik said, adding that while the PC rule would not come into effect tomorrow as yet, the recovered-vaccinated-tested (PCT) would continue to apply.
“Let me note that the decision means only temporary suspension, rather than annulment,” the minister said, repeating that the government regulation was not imposing mandatory vaccination nor was this the government’s intention.
According to Cvetko, the union’s key argument against the regulation in the motion to the court was that “It’s not an executive regulation that can impose mandatory vaccination, but that this should have been regulated solely by means of a law”.
He said the court disagreed with the government’s argument “that the consequences of the suspension of the challenged regulation would be heavier than those emerging if the regulation was implemented”.
In its decision, the court noted that the regulation provided for sanctions to be imposed on the employees not meeting the PC rule or exceptions to the rule in line with employment legislation. While the sanctions are not set out, it cannot be ruled out that they include dismissal from the job.
As to the hard to repair consequences that could emerge through suspension of the rule, the court found the government failed to substantiate the argument that coronavirus would spread significantly faster and more extensively among state administration employees than among the rest of the population or other groups who are even more exposed to risky contacts at work.
The court thus disagreed with the government’s claim that the challenged regulation was the only means to guarantee workers’ rights to a safe and healthy environment.
If the challenged regulation had been implemented and it later turned out it was unlawful or unconstitutional and would have to be annulled, the court said hard to repair consequences could emerge for those employees who did not meet the PC condition or exceptions thereof.
The court also noted that any vaccination is a lasting and irreversible measure for each individual that in the case of the PC rule mandate could go against the individual’s will. Thus it did not accept the government’s position that the regulation was of a temporary nature.
The court carried the decision by seven votes to two. Judges Klemen Jaklič and Marko Šorli announced dissenting opinions.
“It’s yet another in a series of decisions of the current line-up that cannot be consistently explained with legal arguments and within the constitutional doctrine on suspensions,” tweeted Jaklič.
Re-tweeting his comment, Prime Minister Janez Janša said that the majority on the court “share responsibility for everyone who will die from or get ill with Covid-19 due to the further spread of the virus, which is mainly the consequence of the low vaccination rate in the population”.
Similarly, Interior Minister Aleš Hojs, commenting on the decision for Planet TV, welcomed the court’s decision not in substance, but because the Constitutional Court finally assumed responsibility. “It means we now have those people who will be responsible in the end if the epidemic deteriorates again”.
The police trade union expects that the final decision of the court will be similar to the one taken by the court today.
“We believe the decision puts up a mirror to the government due to the actions of which we are facing the country clearly regressing on fundamental legal and democratic standards,” Cvetko said.
They believe the government should be the first to respect the constitution. “If not, it means the rights of all the citizens, that is including police officers, are under threat.”
The union expects the government to take decisions affecting the rights of all employees in the country in a more prudent way in the future and in the spirit of social partnership.