How legal is forced vaccination and how to refuse vaccination. Advice from a lawyer

February 1, 2021, 13:43 - Public news service - OSN Mass vaccination against COVID-19 has begun in Russia. Priority is given to elderly people and those with chronic diseases. However, it seems that the majority of working-age Russians will not be able to avoid vaccination. Social networks are full of complaints that employers are forcing employees to get vaccinated, threatening them with layoffs. Lawyer Vladimir Goncharov told the Public News Service how legal this is .

What the law says

“We should not forget that vaccinations are voluntary. You can always refuse in writing. There are a number of vaccinations required to visit a number of countries; without them, you simply will not leave the country or enter your destination. But Russia is not included in this list. There are also special conditions for vaccination in case of danger or the onset of an epidemic. In this case, the epidemic is already taking place,” explained the lawyer.

What are the consequences of refusing the measles vaccination?

In Russia, according to Rospotrebnadzor, 97% of children 6 years old are vaccinated against measles, so the source of the increase in diseases is imported infection from countries where vaccination coverage is lower.

Measles is an acute infectious viral disease, highly contagious (up to 90-100%), which is characterized by: acute onset with high fever, malaise, headache, runny nose, cough, symptoms of conjunctivitis (lacrimation, photophobia, redness of the eyes, swelling of the eyelids) , i.e. initially it looks like an acute respiratory viral infection (ARVI). 3-4 days after the temperature rises, rashes in the form of white dots – Filatov-Koplik spots – can be seen on the mucous membrane of the inner surface of the cheeks in the area of the molars.

On the 4th-5th day of illness, a maculopapular rash gradually appears, which can merge. On the first day it appears on the face, neck, behind the ears; second day - on the body; on the third day - on the extensor surfaces of the arms, legs, including fingers. The rash goes away in the same stages. After the rash, pigmentation remains on the skin, which gradually goes away.

The measles virus is transmitted by airborne droplets when talking, coughing, or sneezing. It can remain on surfaces for up to two hours. The virus spreads easily and quickly through the air and, entering ventilation, infects a large number of people. As a rule, unvaccinated children and adults get sick. Adults experience the disease more severely. A person with measles is contagious to others from the 4th day of the incubation period until the 4th day of the rash.

Measles is dangerous due to complications from the central nervous system, respiratory system, and gastrointestinal tract. There is no specific drug against measles. Depending on the severity of the disease, symptomatic treatment is prescribed: bed rest, drinking plenty of fluids, lowering body temperature, antihistamines. It is necessary to maintain eye and mouth hygiene (washing the eyes, gargling), and antiviral therapy is also indicated. Antibacterial therapy is prescribed when there is a threat of secondary infection and complications.

It is impossible to get measles a second time. A person who has had measles develops a strong immunity to this disease.

Immunity is transferred to a newborn child from a mother who was ill or vaccinated before pregnancy and lasts for approximately 6-9 months.

The only effective way to protect against measles is vaccination. Routine vaccination is carried out at 12 months, revaccination at six years. After the first vaccination, immunity may not be fully formed and will disappear over time. After revaccination, long-term immunity is formed. The measles vaccine is compatible with others, so children are usually immediately vaccinated against rubella and mumps. If there has been contact with a sick person, then vaccination is carried out urgently to all contact unvaccinated people within 2 - 3 days after contact (children over 6 months old) with a sick person.

For young children under one year old (aged 3–6 months), emergency prevention involves the administration of human immunoglobulin. It contains protective antibodies from the serum of donors from people who have had measles. After 2-3 months, you can do active immunization - measles vaccination.

For preventive purposes, single vaccines and combination vaccines can be used (they also protect against rubella and mumps). Vaccines used:

1. "Ruvax". Made in France.

2. LCV (monovaccine).

3. Mumps-measles vaccine (Russia).

4. Priorix (UK).

5. MMR (combined measles, rubella, mumps). Made in USA.

Immunoprophylaxis is carried out using a weak live vaccine. A weakened virus is not dangerous to health, it cannot cause disease, but, having detected it, the immune system begins to defend itself - to produce antibodies. For a short time, for example, a fever may rise or a rash may appear - this is evidence that the immune system has recognized the virus and is producing memory cells against it in order to learn to resist a real, unattenuated infection.

After vaccination against measles, short-term reactions may occur:

general (redness of the pharynx, mild cough, flushing, runny nose, conjunctivitis);
local (redness in the area of vaccine administration, swelling). These manifestations disappear after a few days.

In some cases, the temperature may rise (after 6 days), a measles-like rash, and malaise may occur. Such symptoms may occur with the introduction of a monovaccine, which produces immunity only against measles. If combined vaccinations are carried out (rubella, mumps), additional symptoms may appear (inflammation of the salivary glands, joint pain). The main thing to remember is that a reaction to a vaccine is normal.

If a child has not been vaccinated, he is not recommended to travel to areas where an epidemic has been declared. A child over one year old is vaccinated according to the vaccination calendar against the background of full health. If you are planning a trip to an unfavorable area, then the vaccination must be done 14 days before departure.

Our center provides preventive vaccinations against measles with the following vaccines:

1. LCV (monovaccine).

2. Mumps-measles vaccine (Russia).

3. MMR (combined measles, rubella, mumps).

Anti-vaxxers believe that vaccinations cause autism in children and that vaccines contain dangerous chemicals such as mercury. This opinion has no basis and is dangerous, since in 2021, measles led to death in 10 thousand cases. Measles vaccination has been available since the 1960s and has been effective in combating measles since that time.

Now the number of refusals to vaccinate children is growing. The adult population is negligent about vaccinations. Because of this, the number of cases is increasing, and the situation in some regions is becoming critical. To avoid this, before the age of 35 you need to check your blood for antibodies to measles; if they are not there, it means your immunity has weakened and you need to do a second revaccination.

Online consultation with a pediatrician (consultation on vaccinations)

consultation cost: 500 rubles

Online consultation

During the consultation, you will be able to voice your problem, the doctor will clarify the situation, interpret the tests, answer your questions and give the necessary recommendations.

Removal from work of sick employees

Rospotrebnadzor, in turn, emphasizes that most large companies are joining the flu vaccination. According to the chief state sanitary doctor Anna Popova, “employers understand that it is better to prevent the disease, to prevent it, than to have problems with a large number of people on sick leave who do not come to work.”

Liliya Mingaleeva, head of the group of HR managers at ICL Services, agrees with this statement. She clarified that vaccination in the company is voluntary, and employees may have contraindications.

— We conduct annual seasonal flu vaccinations approximately in the 2nd half of September. This is the optimal time that allows the vaccinated body to be well prepared to counter the epidemic. First, we do a survey on the corporate portal, asking who would like to get vaccinated. We add a small reserve to the received lists of employees (for those who were on vacation, on a business trip and, perhaps, did not see the notification) and inform employees at what time and on what days vaccination is carried out. We are trying to “separate” large departments so that employees don’t have to stand in line and businesses don’t have to “stand idle,” explains Liliya Mingaleeva. — If an employee is not in the office on the day of vaccination, he will be able to use medical insurance, sign up for any clinic under his insurance policy and get vaccinated at any other convenient time.

The company is interested in having as few sick employees as possible, or better yet, no employees at all, especially those with such a serious and dangerous disease as the flu. We have been implementing a project to vaccinate employees for more than 10 years and are pleased with the result,” she assures. — As for the employees, first of all, it’s convenient for them. The therapist and nurse come directly to the office to administer vaccinations. There is no need to think in the constant lack of time when to find a free hour for yourself. Secondly, employees protect themselves, their health and the likelihood of sick leave is reduced, which is good not only for health, but also for the family budget.

Meanwhile, not all companies can afford the luxury of inviting healthcare workers to the office. And if the requirements for measles vaccinations that recently came into force in the organization are mandatory, then the immunization campaign at the state level is only a recommendation. In particular, the Decree of the Chief State Sanitary Doctor of the Russian Federation No. 10 dated July 10, 2019 “On measures to prevent influenza and acute respiratory viral infections in the 2019-2020 epidemic season” states:

“It is recommended to heads of organizations, regardless of their organizational and legal form:
Organize immunization of employees against influenza.
Take measures to prevent hypothermia of persons working outdoors in winter, ensuring the availability of premises for heating and eating, as well as maintaining optimal temperature conditions in the premises.
During the epidemic season for influenza and ARVI:
take measures to prevent persons with ARVI from working;
provide employees working with the public with personal respiratory protection equipment (medical masks).”

In fact, Rospotrebnadzor considers it necessary to remove sick employees from work, although this is contrary to current labor legislation (the rules for removal from work duties are prescribed in Article 76 of the Labor Code of the Russian Federation). And a refusal to allow employers to work will result in a State Labor Inspectorate check if an employee complains about a violation of rights. The management of preschool educational institutions (clause 19.3 of SanPiN 2.4.1.3049-13) and public catering organizations (clause 4 of Appendix 5 of SanPiN 2.3.6.1079-01) is allowed to suspend an employee from work if symptoms of a cold appear. In addition, employees of medical and educational organizations, transport, and public utilities are subject to mandatory flu vaccination. This is provided for in Appendix 1 of Order No. 125n of the Russian Ministry of Health dated March 21, 2014. These rules cannot be extended to all other sick people.

At whose expense is vaccination carried out?

Since sanitary and anti-epidemic measures are required by law, entrepreneurs have the right to write off the costs of their implementation. If a company decides to vaccinate all employees, costs for these purposes are allowed to be written off when calculating income tax. Possible reasons include:

expenses for ensuring normal working conditions (clause 7, clause 1, article 264 of the Tax Code of the Russian Federation);
other expenses associated with production and/or sales (clause 49, clause 1, article 264 of the Tax Code of the Russian Federation).

To confirm the costs of mandatory vaccination for the Tax Service, an entrepreneur will need:

order or instruction from the manager to vaccinate employees based on the law or a received instruction;
agreement and act on the provision of relevant services;
copies of permits for carrying out medical activities and providing vaccination services;
payment order confirming the transfer of funds for vaccinations;
a list of vaccinated employees (sometimes an additional certificate against measles (other diseases) is required from each subordinate who received the vaccine).

Note that there are some peculiarities when taking into account the costs of vaccination carried out under VHI contracts. In particular, if such an agreement is concluded for a period of one year or more, then it is allowed to take into account only a certain cost rate - up to 6% of labor costs. If the contract period is shorter, then there are no limits.

Don’t worry about personal income tax and insurance premiums. If there is evidence that the employer complied with the requirements of the law, the employees will not have any income. This means there is nothing to pay income tax and insurance premiums on. But the Ministry of Finance says: if vaccination is carried out at the initiative of the employer and the employee agrees to it, he has a direct interest, and an object of taxation of insurance premiums appears. In this case, the employer must pay insurance premiums on the amount spent on organizing the employee immunization campaign.

Workers without vaccinations do not want to pay sick leave

If almost everything is clear with the measles vaccination (such vaccination is mandatory), and practically no questions are asked about why people are forced to get the measles vaccination (this is an extremely contagious infection), then the flu vaccine is voluntary. The immunization campaign starts annually in late August - early September and ends in December. This period was not chosen by chance: a person who receives the vaccine has time to develop immunity by January-March, when peak incidence rates are recorded. Another thing is that the vaccine does not always save you from the virus - it mutates too quickly. Many simply do not see the point in vaccination: it still does not protect 100%.

And although flu vaccination is voluntary, officials periodically express different ideas on how to convince or force the population to get vaccinated. For example, the Ministry of Health and the State Duma are seriously discussing an initiative that would introduce penalties for people who urge citizens to refuse vaccinations, except in cases where there are medical indications. Some believe that information that promotes refusal of vaccinations and distorts data about various diseases and methods of treating them should be considered dangerous, and those distributing it should be punished as extremists.

Another idea is not to pay sick leave for those parents whose children get sick due to refusal to vaccinate, or to impose fines on them. In what size has not yet been specified. But domestic officials are looking at their European colleagues, where in Germany, for example, a fine of 2,500 euros has been introduced for refusing immunization against measles and a ban on attending school and kindergarten.

Read more: How to organize flu vaccinations for employees

What employers are required to do

Article 212 of the Labor Code of the Russian Federation requires employers to provide safe conditions and labor protection for workers, including in the form of providing sanitary, household and medical services. At the same time, Federal Law No. 52-FZ of March 30, 1999 “On the sanitary and epidemiological welfare of the population” clarifies whether Rospotrebnadzor can require vaccination against measles, influenza and other viral diseases, and obliges employers to carry out sanitary and anti-epidemic measures, including carry out preventive vaccinations if required by the Public Welfare Surveillance Service. Under this law, employers must:

annually create lists of workers for medical institutions who need to receive vaccines in accordance with the calendar of preventive vaccinations for epidemic indications (Order of the Russian Ministry of Health dated March 21, 2014 No. 125n plus regional amendments);
inform employees about the vaccination schedule;
send them to the vaccination clinic;
in agreement with the employees of the medical institution serving the employees of the enterprise, ensure conditions for vaccinations directly at the enterprise and the attendance of the required number of employees;
explain to employees the consequences of refusing preventive vaccinations, including the possibility of removal from work, exclusion from organized work groups, and ban on visiting certain countries;
if employees refuse immunization, ensure that they appear at the vaccination office to sign the refusal to be vaccinated;
in situations where vaccination against rabies is subject to sick leave or transfer to light work (this also happens with other vaccinations), follow the requirements of the medical organization.

If we talk specifically about the measles vaccination campaign, the employer will need a certificate from the foreign employee confirming receipt of vaccination or exposure to this disease. They receive it in medical institutions after taking a test for antibodies to the virus. If you don’t want to spend money on tests and a certificate, experts don’t see anything wrong with repeated vaccination: vaccination against measles at 60 years of age is required in the same way as at 40 years of age or another age. Especially if the employee has contact with a large number of people, works in transport, in the service sector and in trade.

Once all employees have received the required vaccinations, the employer “can rest easy.” But in case of a visit from inspectors, you must present documents issued by the medical organization that administered the vaccinations (a list of those vaccinated indicating information about the drug administered, copies of certificates of preventive vaccinations, etc.). This clarification is contained in the letter of Rospotrebnadzor dated October 4, 2019 No. 09-13030-2019-40.

IMPORTANT!

Officials do not say anything about specifically notifying the service, and a sample free-form notification about the employer’s compliance with measles immunization requirements for foreign workers has not yet been presented anywhere.