In Spain, there is no law backing the mandatory vaccination of citizens. Spanish labor law does not contain any legal provision in this regard, either. Therefore, employers cannot retaliate against employees who are not vaccinated or do not have a COVID-19 passport. Another matter is the possibility of adopting measures to ensure employees’ health and safety in the workplace in the context of occupational risk prevention.
The COVID-19 vaccine is not mandatory in Spain, at least for now, as it is in other countries (in the United States, France, Italy, Austria, Germany and Greece, it is in certain sectors). There is no express reference in Spain’s current legislation to the possibility of imposing a vaccine mandate on the population in general or on employees in particular.
In the absence of a pandemics law that expressly regulates the possibility of imposing a vaccine mandate on the general population, the debate is on.
The 2002 Patient Autonomy Law establishes that any action in the health sphere requires, as a general rule, the prior consent of patients or users and they have the right to reject the treatment in question, except in certain cases stipulated in the law.
On the other hand, the Public Health Organic Law envisages the possibility – provided that urgent or necessary health reasons exist – of recognition, treatment, hospitalization or control measures being adopted where there are rational indications of the existence of a hazard for people’s health due to the specific health situation of a person or group of people or due to the health conditions in which an activity is pursued.
Nor does the labor legislation contain any legal provision that expressly permits the mandatory vaccination of employees. Consequently, any decision by an employer that imposes mandatory vaccination (whether directly or indirectly, for example, by conditioning an employee’s access to his or her work station on being vaccinated or having a COVID-19 certificate) and, consequently, also any company measure against employees who reject the vaccine (unlike other countries where employees who do not get vaccinated can be sanctioned or even be fired or have their pay docked) would be contrary to the law.
Another question is whether the employer can adopt other types of measures in compliance with its obligation to ensure worker health and safety, in accordance with the mandate laid down in the Occupational Risk Prevention Law.
Among other preventive measures against COVID-19, employers can consider various hygiene-related measures, air filtering systems, decontaminating workplaces or establishing teleworking if the circumstances call for it.
Consideration could even be given to the legality of requiring employees – particularly those who are not vaccinated and may constitute a special at-risk group – to be tested for the virus if the prevention services recommend it in light of the current situation in specific cases and under specific circumstances that support the measure.
In any case, it should be borne in mind that, given that there is no statutory provision that expressly provides for the possibility of employers requiring employees to be tested, it will fall to the courts, as some have already verified, to evaluate each specific case and decide whether the testing requirement is justified and constitutes an adequate and suitable measure that is necessary and proportionate to the aim sought.
This possibility could respond to the legal mandate imposed on employers to safeguard the health of the worker concerned, as well as the health of third parties such as colleagues, customers or suppliers, who could become infected by workers who are infected but their infection has not been detected using the relevant test.