According to Article 284 of the Civil Code of Ukraine, the provision of medical care to an individual who has reached the age of fourteen shall be carried out with his/her consent. An adult able-bodied individual who is aware of the significance of their actions and can direct them shall have the right to refuse treatment.
Article 43 of the Fundamentals of the Legislation on Healthcare of Ukraine stipulates that the application of diagnostic, prevention and treatment methods requires the consent of a patient informed according to Article 39 of these Fundamentals.
Part Six of Article 12 of the Law of Ukraine “On Protection of the Population from Infectious Diseases” also provides that adult able-bodied citizens shall be given preventive vaccinations with their consent after providing objective information about vaccinations, the consequences of refusing them and possible post-vaccination complications.
In addition, in clause 3 of its Resolution 2361 (2021), the Parliamentary Assembly of the Council of Europe calls for and recommends informing citizens that vaccination is not mandatory and that no one can be subjected to political, social or other pressure to get vaccinated, and ensuring that no one is discriminated against for not getting vaccinated.
According to Article 2-1 of the Labour Code of Ukraine (hereinafter referred to as the Labour Code), any discrimination in the sphere of work, direct or indirect restriction of employees’ rights depending, in particular, on the state of health, is not allowed.
It should be noted that Article 43 of the Constitution of Ukraine also guarantees the right of everyone to work, which includes the opportunity to earn a living by work that they freely choose or agree to. Citizens are guaranteed protection from illegal dismissal.
At the initiative of the owner or the body authorized by him/her, the employment contract may be terminated, in particular, in the event of a revealed discrepancy between the employee’s position or work performed due to a state of health that prevents the continuation of this work (clause 2, Part One, Article 40 of the Labour Code). At the same time, such dismissal can be carried out only based on the factual data confirming that due to the state of health (persistent decrease in working capacity), an employee cannot properly perform the labour duties assigned to him/her or their performance is contraindicated for health reasons (clause 21 of the Resolution of the Plenum of the Supreme Court of Ukraine “On the Practice of Consideration of Labour Disputes by Courts” No. 9 of November 06, 1992).
Note that the dismissal of an employee on this basis is not a disciplinary measure. According to Article 147 of the Labour Code, one of the following penalties may be applied to an employee for violating labour discipline: 1) reprimand; 2) dismissal.
At the same time, clause 24 of the Standard Rules of Internal Labour Regulations for Workers and Employees of Enterprises, Institutions, Organizations, approved by the Resolution of the State Labour Committee of the USSR in coordination with the All-Union Central Council of Trade Unions No. 213 of July 20, 1984 (which have retained their force in terms that do not contradict the legislation of Ukraine), defines that violation of labour discipline is non-performance or improper performance due to the fault of the employee of the labour duties assigned to him/her. Therefore, an employee’s refusal to vaccinate cannot be considered a violation of labour discipline.
In addition, the Roadmap for the introduction of a vaccine against acute respiratory disease COVID-19 caused by the SARS-CoV-2 coronavirus and mass vaccination in response to the COVID-19 pandemic in Ukraine in 2021-2022, approved by the Order of the Ministry of Health No. 3018 of December 24, 2020 (as amended by Order of the Ministry of Health of Ukraine No. 213 of February 09, 2021), established that vaccination against the coronavirus disease COVID-19 in Ukraine will be voluntary for all population groups and professional groups.
Taking into account the above, there is no legal basis for the employer to force employees to be vaccinated against the coronavirus disease COVID-19 and/or bring them to disciplinary responsibility for refusing to be vaccinated against this disease.
Reference: Ministry of Economy