With additional research from Gayathri Loka
In an interview with Le Parisien in early January, President Emmanuel Macron said he didn't want to put the unvaccinated in prison or vaccinate them by force. Instead, he wanted to les emmerder – a crude term which essentially means "shit on them," "piss them off," or "hassle them," depending on who you ask.
10 days later, France's lower house gave pass vaccinals the green light. Till then, a simple health pass (pass sanitaire) showing a recent negative test, vaccination certificate, or recovery certificate was all that was needed to gain access to places of leisure. Now, however, access to a large number of public spaces depends on your vaccination status. If you want to drink a coffee in a café, watch a black and white film in a cinéma, or browse in various department stores with a surface area greater than 20,000 meters squared, you have to have had your jab.
Predictably, anti-vaxxers, anti-COVID-vaxxers, and the vaccine hesitant were up in arms about this. One anti-pass vaccinal petition garnered over 1,000,000 signatures. It read, "The government's plan to turn the health pass into the vaccine pass isn't just an administrative formality. It's the point of no return in the path towards mandatory vaccines. It's authorising the discrimination of people according to their vaccination status."
But even if they haven't put it so colloquially, other EU countries are clearly taking a similar stance. Austria has been the first (and as of yet only) country making COVID-19 vaccination mandatory for the general public, but others are discussing such a measure (Germany), while still others are making COVID-19 vaccination mandatory for those over a certain age (Greece, Italy), and many are making COVID-19 vaccination mandatory for those in certain professions (Latvia, Poland). At the end of last year, the President of the European Commission, Ursula von der Leyen, advised that EU members consider mandatory vaccination against COVID-19.
The ostensible goal of these measures is to encourage COVID-19 vaccine uptake. But denying people their choice is controversial. The word that is commonly bandied around is discrimination: Employers who require their employees to get vaccinated are discriminating. Universities that require students to get vaccinated are discriminating. Bars that require patrons to get vaccinated are discriminating.
In response to these claims, pro-vaxxers may say that facing the consequences of your actions – or, as is the case with not getting vaxxed, inactions – doesn't constitute discrimination. They might say that making such a claim is not an OK thing to do – believing in pseudoscience is not a protected characteristic.
But do the unvaxxed have even a small point? Is it stopping people from doing things because of their vaccination status discrimination?
In the sense we are using it, discrimination refers to treating people differently because of who they are or what they do. A boss denying a disabled person a reasonable adjustment at work might be discrimination, for instance. Firing an employee due to their pregnancy may be discrimination. A baker denying to make a gay cake may also be discrimination (though this one is complicated and depends on which court you ask).
“Discrimination” is a word that carries largely negative connotations; it denotes something that is morally or legally wrong. It is often associated with unlawfulness. According to Article 21 of the EU Charter of Fundamental Rights, "any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited." Besides this particular piece of legislation, the 27 EU states have their own laws on discrimination. Where there is a conflict of EU law with a member state's law, the EU law prevails.
But the term “discrimination” gets even more complicated. Because sometimes, you can discriminate against someone according to a protected characteristic without risking any legal repercussions. This is often referred to as lawful discrimination.
For instance, no EU country allows people under the age of 16 to vote in elections. Though this is age discrimination, is generally accepted that there’s a good reason behind it and so it’s not unlawful. Similarly, if your eyesight is poor and you are denied a driver’s license because of this, it is also generally accepted that this isn’t unlawful disability discrimination. Neither is it unlawful for a church to specify that only members of that religion apply for a priesthood job.
A more direct comparison to COVID-19 vaccination restrictions would be non-COVID-19 vaccination restrictions that pre-date SARS-CoV-2.
In a number of EU countries and beyond, healthcare workers, veterinary workers, and prison workers are encouraged to be vaccinated against diseases such as hepatitis, measles, mumps, rubella, and tetanus. The vaccinations in question do not always form a condition of employment – it varies by country, region, and contract – but they sometimes might.
Similarly, those traveling to various countries in Africa, South America, and the Caribbean sometimes need to prove that they are vaccinated against Yellow Fever. This is because it is not a tourist’s right to visit a place, fall ill with a preventable disease, and then require medical care in that place or elsewhere.
In a similar vein, some might also say that it is not your right to live in a place, fall ill with a preventable disease, require medical care, and risk the wellbeing of other more medically vulnerable people. Other people might add that an individual’s COVID-19 vaccine refusal might be a form of discrimination in that it can threaten the health and freedom of those around you.
In December 2021, a U.K. tribunal ruled that a “fear of COVID” was not protected under the U.K.’s Equality Act. This was when a U.K. worker had “genuine fear” of getting the virus and passing it on and so did not come to work. In response, her employer withheld her wages. However, according to the tribunal, this did not constitute discrimination on the grounds of belief.
In January 2022, also in the U.K., a care home assistant who lost her job due to her COVID-19 vaccination refusal was found to have been fairly dismissed. The tribunal said that “her reason [for not getting vaccinated] was her fear of and scepticism about the vaccine and unsubstantiated belief that there was a conspiracy, rather than religious belief.” The tribunal also noted that the care worker’s unvaccinated status risked the health of others.
These two cases raise questions. In the U.K., people have the Right to Freedom of Thought, Conscience, and Religion. In the EU, there are similar rights as well as the right to autonomy and consent. These rights certainly relate to COVID-19 vaccination policies – your right to decline, refuse, hesitate according to whatever belief, conspiratorial or otherwise, that you may genuinely hold.
When fact-checking, we like to label claims as "true," "false," or "misleading." Such markers are nice in their neatness. They please our readers and in many ways, they please us too. After all, who doesn’t like to have a clear answer to a clear question? Do COVID-19 vaccines contain nano router technology? No. Are children dying from COVID-19 vaccines? Also no.
But as fact-checkers, we struggle to give clear-cut answers to claims that center on questions of legality. Whenever we attempt a response, our conclusions are likely to be tempered with words such as “it is possible that” or “it may happen to be tenable” and slapped with an "unverifiable” label that essentially means “we don’t know, maybe.”
The question are countries discriminating against unvaccinated people is one such instance where “we don’t know, maybe” is pretty much the only response we can give. Fact-checkers can't really answer such questions because such questions are a matter for courts to discuss among themselves. Doubtless, courts will disagree with one another. Doubtless, fact-checkers will disagree too.
Images credit: Reuters
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