Norway: voluntary vaccination is the policy, though the law seems to allow for more

Vaccination against Covid-19 started in Norway on 27 December 2020. At the time of writing, Norway had fully vaccinated around 6,6% of its population and provided the first dose for around 25%.

Whilst a significant event given the dramatic consequences of the Covid-19 pandemic, vaccination itself has not been contested either legally or in the public debate. Quite on the contrary, the debate in Norway has been on who will get the vaccine first, and whether areas with a high infection rate and subject to stricter infection control measures should receive a larger proportion of vaccines than other parts of the country. The Covid-19 vaccination plan, schedule, and priorities are drawn up and administered by the Norwegian Institute of Public Health like other vaccination programs and decided by the Ministry of Health and Care Services.

The Norwegian Government has since the beginning of the pandemic maintained that vaccination against Covid-19 will be voluntary like other vaccines. Behind this benevolent attitude lurks sweeping pre-pandemic legal powers for the Minister of Health and Care Services to order compulsory vaccination if necessary, to contain a serious outbreak of a dangerous contagious disease (Article 3-8 of the Infection Control Act 1994). However, compulsory does not mean forced vaccination. Violating a vaccination order may constitute a crime punishable with fines or potentially prison (Article 8-1). In practical terms, the most likely and proportional measure afforded by the law against persons that do not comply with compulsory vaccination are restrictions on movement and gatherings, e.g., in schools or public transportation.

Norwegian law does not allow employers to demand vaccination of employees. Vaccination is also optional for persons working in the health services. However, the law does not prevent employers to place restrictions on employees that pose a health risk, for example by giving them tasks that do not expose co-workers or others to risk. In some cases, non-vaccination may possibly be a ground for dismissal if that means the employee cannot perform his or her duties. For employees in the health services, the law places on them an obligation of not exposing patients to health risks, which includes infection of dangerous diseases. However, the legal limits of voluntary vaccination for employees have not yet been tested in the courts.

One reason for the authorities’ legal toolkit not being applied may be that the public view on vaccination is generally positive. In a survey from June 2020, 89% of the respondents agreed that vaccines in general are safe and the authorities enjoy a high level of trust. A survey from the Norwegian Institute of Public Health conducted in December 2020 before vaccination started, reported that 73% of the adult population were likely to accept a Covid-19 vaccine, while 11% were negative. However, a large scale (65,000 respondents) survey conducted in April 2021 following the AstraZeneca vaccine being put on hold in Norway due to serious side effects, showed that the attitude towards vaccination is contingent on its safety. Only 28% were likely to accept the AstraZeneca vaccine, while 91% were likely to accept a vaccine from Pfizer or Moderna and 68% would likely accept another non-specified vaccine.

Another reason is that compulsory vaccination in the current situation would hardly be legal anyway. Suppose the public support for the vaccination program dropped, leading the Norwegian authorities to consider making vaccination compulsory, that decision like all other measures according to the Infection Control Act 1994 would have to pass a proportionality test (Article 1-5). Even if compulsory vaccination against Covid-19 would be introduced in other countries and would in principle be accepted by the ECtHR given the wide margin of appreciation, it would not necessarily pass a proportionality test in Norway. A proportionality test such as the one required by Article 1-5 of the Norwegian Infection Control Act 1994 needs two components. One is the necessity of containing the spread of the virus due to its negative effects on public health. The other is the harm caused by the infection control measure, in this case a very intrusive interference with the right to private life. While the potential negative effect of compulsory vaccination is likely equal in all countries, the potential benefit from the vaccine is not, but rather dependent on death, sickness, and infection rates in each country. In Norway, where the death rate of the virus is very low, the outcome of the proportionality test may therefore be different than in a country with a very high death rate.

Incidentally, the same logic of proportionality appears to lie behind Norway’s decision to put the AstraZeneca vaccine on hold, while it is still administered in countries with a higher death rate.