Can local governments impose proof of vaccine requirements? Will they be legal if they do?

Jul 19, 2021 | 61 comments

Can local governments mandate Covid-19 vaccine cards for entrance to stores, restaurants, sporting events and public transportation? The question came up last week after the mayors of Guayaquil and Loja said they would institute such a requirement in their communities. In Cuenca, two municipal council members said such a requirement might be necessary and indicated they would bring the issue to the full council.

Guayaquil Mayor Cynthia Viteri says her interest in applying vaccine rules are to protect the public health.

According to Guayaquil Mayor Cynthia Viteri and the Loja municipal council, those cities’ rules would take effect in October and August, respectively. In both cases, the requirement would apply to all residents 16 and older.

Although the national government says it opposes vaccination entry requirements for private and public places or for use of public transportation, it is unclear whether municipal and provincial governments can legally impose such rules. “We have not faced a pandemic before so the limits of local jurisdiction are not clear,” says constitutional attorney Pablo Alarcón. “The constitution guarantees personal freedoms but these can be suspended under emergency circumstances, as we have witnessed during the current health crisis. There is also the legal rule of proportionality that restrictions on freedoms can only be applied in cases of extreme public risk.”

In addition, says Alarcón, there is the question of the rights of local governments to enact safety rules in their jurisdictions. “In the past, limits on personal freedoms, particularly mobility, have been imposed by the national government under emergency declarations.”

The “gray area”, according to Alarcón, is the fact that the proposed requirements in Guayaquil and Loja do not mandate vaccines. “It is still up to the individual to make that decision. On the other hand, the entry restrictions in themselves raise constitutional questions since affect personal freedom.”

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Billy Navarrete, director of the Ecuador Council for the Defense of Human Rights, agrees with Alarcón about the lack of legal clarity on local authority but says he strongly opposes any government mandate requiring proof of vaccination or restrictions on those who choose not to be vaccinated. “There would constitutional objections to such requirements even if they are applied at a local level. The legal question would depend on the extent of danger to the public but we are far from that point today.”

Ángel Valenzuela, coordinator for Human Rights Division for the National Ombudsman, also questions whether cities or provinces would be allowed to impose rules beyond those of the national government. “The Ministry of Health says that vaccination is voluntary so I don’t think it would be legal for lower authorities to contradict that,” he says. “The World Health Organization and the Inter-American Commission on Human Rights have been emphatic that vaccination should be voluntary, subject to the rules of prior and informed consent, and if we see efforts to the contrary this office will oppose them.”

In her justification for requiring proof of vaccines, Viteri cited similar rules being imposed in France. “The requirement is being discussed in Europe and all over the world so what we are doing is following a growing international movement. In this case, protecting the public health comes ahead of concerns for individual liberties.”

In addition to the legality of requiring vaccine cards for entry to businesses and public events, Valenzuela says he has received complaints from employees in several large businesses that they are being required to be vaccinated. “In the government’s program for businesses to vaccinate employees, which began last week, it was stipulated that vaccines would be voluntary. I am hearing that some employers are telling workers that they must be vaccinated to keep their jobs. I am looking into these cases and will file complaints if the complaints are true.”

Alarcón cautions against rushing to judgment on the vaccination requirement question. “Right now, this is all talk,” he says. “No rules have yet been put into effect and we need to wait and see if any are. The vaccination program seems to be going well and if this continues and if the pandemic comes under control there may be no need for exceptional requirements.”

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