The Contentious-Administrative Chamber of the Superior Court of Justice of the Balearic Islands has authorized the regional government to require three weekly diagnostic tests to community health workers who are not vaccinated against the coronavirus. This will mean that health workers who are immunized have to prove through a vaccination certificate – the covid passport or another official document – that they have received the vaccine in order to carry out their work, both in the public and private spheres. The measure extends to workers in hospitals and health centers, dental clinics, voluntary abortion centers, major outpatient surgery, dialysis and mental health centers.
In an order issued this Thursday, the Contentious-Administrative Chamber considers that forcing unvaccinated health personnel to carry out diagnostic tests entails a “tenuous limitation” of the fundamental rights of those who by law have the obligation to participate “actively ”In disease prevention. The judges maintain that health workers are a professional group that performs an “essential” function in society and that their situation places them on the front line in the face of the pandemic. “It is a group especially threatened by the disease. The epidemiological reports provided by the health administration indicate that the risk of suffering from the disease in a greater degree of intensity occurs in unvaccinated people compared to vaccinated people ”.
Although the judges emphasize that the vaccines do not exempt or protect “with absolute resounding” against the virus, they have been shown as a “highly effective” tool. “That is a statistical data that is not debatable,” they highlight. The order emphasizes that the decision not to be vaccinated belongs to the freedom of each individual, a freedom must be combined with the right to life and health of others. For this reason, they consider that the annoyance that the analytics may cause is “scarce and practically insignificant” for the personnel returning from vacations or new admission, while for the unvaccinated the discomfort of repeatedly submitting to these tests “is justified due to the seriousness of the pandemic situation ”.
“There is thus an objective and reasonable cause of justification, since it is about the protection of the health and life of people. And the Supreme Court highlights the non-prevalence of the right to privacy and the right to the protection of personal data when it is necessary for the prevention of a risk ”, reads the order. Of course, the resolution indicates that the practice of these tests cannot entail any type of economic cost for health professionals and the Administration cannot create data files or have those results with any other destination or utility. The toilets who join on vacation, leave or for new hire will have to undergo a test with a notice exceeding 72 hours before their incorporation to work.
The measure was approved last Monday by the Balearic Executive and was awaiting ratification by the courts. “We ask in the social health sector the requirement to present the complete certified vaccination or three weekly tests,” said the regional spokesman, Iago Negueruela. Workers who refuse to submit to either of the two measures may face the sanctions contained in the decree law of July 2021 or a disciplinary labor file. In the Balearic Islands there are around 45,000 people working in the health sector and about 2,000 people, 4.5%, are not vaccinated.
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