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Legal Perspective: We Can Cope, but Let the Next Pandemic Wait a Bit

• Courts have predominantly found that the requirements for mask-wearing and COVID certificates were proportional and justified compared to the threat to public health.
• Employment contracts and internal regulations should be made pandemic-proof for essential service providers and companies.
• In the event of the worst-case scenario – a state of emergency – the Supreme Court has indicated that the minimum legal framework currently exist.
• A more effective approach to a new pandemic would be with a new infectious diseases and prevention law.

Maarjo Mändmaa, Chancellor

COVID-19 has not been an internationally concerning public health emergency for seven months. In everyday language and life, we knew it as the coronavirus pandemic. The pandemic brought about a safety belt of societal restrictions to protect the healthcare system and public health, especially the elderly. At that time, our knowledge about the virus and its spread was scarce.

The virus was constantly changing, and hospitals and the medical system globally were under immense pressure. The restrictions ultimately led to legal disputes.

There have been over 50 complaints about the COVID-19 restrictions imposed by the Government. Some of these, with uniform content, have been merged with cases involving other ministries. Thus merged, the Ministry of Social Affairs has been responsible for handling 45 lawsuits. The nature of the complaints varied, such as challenging the legality of mask-wearing requirements and COVID certificate obligations. In ten cases, the proceedings are ongoing, and in one, suspended. Currently, it can be stated that 75% of these 45 disputes have been in favor of the state. They are also final court decisions not subject to appeal.

A separate issue is, of course, employment relations - these are civil disputes between employee and employer, where there have indeed been satisfaction decisions. In employment disputes, employers have often failed to consider the necessity of vaccination (e.g., requiring vaccination from a warehouse worker who essentially does not interact with people). This overview does not include personnel disputes of the Police and Border Guard Board (PBGB) and the Defense Forces arising from their internal orders. Administrative and district courts have made decisions finding that the PBGB, Defense Forces, and Tallinn Ambulance had no basis for dismissing an unvaccinated person. Courts have relied on various procedural errors made by employers when dismissing employees, assuming they needed vaccination. This certainly does not mean that employers cannot set vaccination requirements at the workplace or that it is unconstitutional. Personally, I find this obligation justified in certain positions, such as health and social care staff. However, in the view of future pandemics, there is less societal friction if the necessity of vaccination is reasonably and necessarily included in employment contracts.

The landmark resolution in coronavirus restriction disputes came from the Constitutional Review Chamber of the Supreme Court.

The Chamber had to assess whether the legal provisions underlying the imposition of restrictions were consistent with the Constitution. In Estonia, the prevention and control of infectious diseases are regulated by the Infectious Diseases Prevention and Control Act (IDPCA), in force since 2003. The Supreme Court's decision in October last year confirmed that the IDPCA provisions allowing restrictions are in line with the Constitution. Protecting human life and health and ensuring the functioning of society as a whole are compelling objectives that may outweigh the infringement of other fundamental rights. However, the Supreme Court pointed out that it is necessary to update the IDPCA.

The need for modernization of the IDPCA was also highlighted in a recent external evaluation conducted by WHO experts.

The last amendments to the IDPCA were submitted to the Riigikogu in February 2022, but due to obstruction at the time (over 500 amendments were proposed to the bill), the bill stalled and fell out of the proceedings with the change of the Riigikogu composition. It is not sensible to proceed separately with individual bills that have fallen out of the Riigikogu proceedings; therefore, a completely new law should be prepared.

Last updated: 11.12.2023