COVID-19 Pandemic and Changes to Finland’s Legislation in Line with the WHO Guidelines

Sharp increase in the number of diseases and the fight against the coronavirus and the rapid spread of the number of cases of coronavirus infection in Finland, including the new Omicron strain, required urgent measures and new amendments to the legislation. Thus, in March 2020, the Government of Finland adopted several decrees introducing the powers provided for by the Emergency Preparedness Act. Additionally, on March 27, 2020, the Government issued a decree implementing amendments in accordance with section 118 of the Emergency Preparedness Act.

The purpose of the Emergency Preparedness Act is to secure the livelihood of the population and the national economy, maintain legal order, maintain constitutional and human rights and safeguard territorial integrity and independence of Finland in emergency situations. It legislates the state authorities’ preparation to state of emergency as well as the authorities’ powers during a state of emergency.

The implementing decrees included, for example, sections on 1)

functioning and protection of health care and social welfare units;

The constitutional aspect of the issue was considered during consideration of the draft law by the Government of Finland. The principle of equality before the law, enshrined in the Chapter of Fundamental Rights of the Constitution, is also applicable to legal entities, in particular, when regulation may indirectly affect the legal status of individuals.

Government Decree on the use of powers in section 86 of the Emergency Powers Act lays down provisions on functioning of healthcare and social welfare units, in section 88 – on healthcare and social welfare services and health protection, in section 93 – on derogations from terms and conditions of employment relationships, in section 94 – on restricting the right concerning dismissal, in section 95 – on obligation to work, and in section 109 – on provision or suspension of instruction and education.

Many restriction measures have been implemented under the Emergency Powers Act, the Communicable Diseases Act (Tartuntatautilaki, 21.12.2016/1227) and other relevant legislation.

So, in the government proposal HE 22/2021 submitted on March 8, 2021, restrictions were intended to protect the right to life and freedom guaranteed by Article 7 (1) of the Constitution, as well as to ensure and promote health of the population, enshrined in Article 19 of the Constitution (The Constitution of Finland). Deliberations in the plenary session of the Parliament were based on the reports of the Constitutional Committee regarding amendments to Articles 86, 88, 106 (1) and 107 of the Law and Emergencies.

On May 28, 2021, the Finnish Parliament approved a government proposal (HE 73/2021 vp) to amend section 58 d of the Infectious Diseases Act (1227/2016) and to temporarily amend the Infectious Diseases Act (Tartuntatautilaki).

Despite the exceptional measures introduced by the government in accordance with Article 3 (5) of the Emergency Situations Act, the number of cases in Finland increased rapidly and reached 1,024 COVID-19 cases on August 12, 2021. Almost all infections are attributed to the Indian “Delta” strain of the SARS-CoV-2 coronavirus, included by the World Health Organisation (WHO) in the group with the highest threat assessment Variants of Concern.

According to the Finnish Ministry of Health and Social Affairs, as of August 15, 2021, there were 116,996 cases and 1,002 reported coronavirus-related deaths (COVID-19 Map, Johns Hopkins Coronavirus Resource Center).

On October 13, 2021, a new bill was introduced to the Parliament to introduce temporary amendments to the Infectious Diseases Act (Tartuntatautilaki, 21.12.2016/1227). The explanatory note to the draft law, containing the subject of legislative regulation and outlining the concept of the proposed draft law, contained references to Articles of the Finnish Constitution, including Article 6 on equality, the right to life and personal security guaranteed by Article 7, freedom of movement guaranteed by Article 9, protection of privacy guaranteed by Article 10, protection of property ensured by Article 15, cultural rights guaranteed by Article 17, linguistic and Sami rights granted by Article 17, rights to work and freedom of doing business guaranteed by Article 18, and obligations to protect fundamental rights stipulated in Article 22 of the Constitution, as well as some international human rights obligations and provisions of the Law on Self-Government of the Aland Islands.

Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that exercise of the rights and freedoms recognised therein shall be without discrimination on grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, membership of a national minority or property, birth or other grounds (Convention for the Protection of Human Rights and Fundamental Freedoms). Discrimination occurs when a person is treated differently in the media or in the state without any objective reason, when this has not previously caused any legal problems in assessing whether the person is vaccinated or not.

On December 16, 2021 the Department of Health and Social Development (THL) announced detection of 34 cases of infection with the new omicron coronavirus strain in Finland. On December 15, 2021, a new maximum for coronavirus infections in Finland was set at 2,225 people, and on December 3, 2022, 17,047 infected people were recorded.

It is important to note that more than a third of those vaccinated with the Pfizer vaccine were twice vaccinated in Finland (Hara, 2021).

According to a risk assessment published by the European Agency for Disease Prevention and Control (ECDC) on November 24, 2021, the rapid spread of the delta virus in the EU could lead to a significant increase in the spread of the disease at the turn of 2021–2022 if restrictive measures were not taken immediately (ECDC, 2021).

A new increase in reported cases of SARS-CoV-2 infected and admissions to intensive care units was observed in October and early November in most EU/EEA countries and was caused by the spread of Delta variant of COVID-19 (B.1.617.2). The rapid spread of the number of cases of coronavirus infection in Finland required urgent action and the introduction of new temporary amendments to the legislation.

To scrutinise the limitations of the situation of COVID-19 in Finland, it is necessary to review several amendments introduced by the Government of the Republic of Finland regarding the declaration of an emergency situation; mention should be made of Preparedness and Emergency Response Act (Emergency preparedness law, Walmiuslaki, 29.12.2011/1552).

Thus, on December 8, 2021, the Government submitted to the Parliament a bill on the adoption of a law on temporary amendments to the Law on Infectious Diseases, the purpose of which is to protect life and health of clients and patients using social and medical services (HE 230/2021 vp.). The bill provided for mandatory vaccination of healthcare workers, as well as the right of an employer in the field of social and medical services to access information from their employees about vaccinations or COVID-19 disease. The amendments were aimed at protecting health and safety of social and medical workers, as well as improving the quality and accessibility of social and medical services. Under the bill, employers can require all doctors, nurses and service personnel to provide a certificate of vaccination or previous illness, or confirmation of PCR testing 2–3 times a week.

Note that in 2020, according to Statistics Finland, 402,000 people were employed in social and health care service sector, of which 132,000 were in the private sector and 268,000 in the public one. Of these, 174,000 worked in health care, 95,000 in social welfare institutions and 133,000 in outpatient social services. The number of employees in these sectors in 2020 was 381,000. According to employment statistics in 2019, there were about 42,000 childcare workers, almost all of whom were full-time employees. Statistics also include workers in preschool education and persons in positions that do not require social and health education.

According to the Department of Health and Social Development, about 55,000 health workers were not vaccinated against COVID-19 in the fall of 2021. In practice, patients at risk are treated in close contact in any social and medical institution, especially in nursing homes and in intensive care units. Therefore, the employer must assess, on a case-by-case basis, the risks of infection as a result of direct contact with persons infected with COVID-19 or who have previously been in close contact with an infected person.

The employer should ensure that work shifts are planned in a timely manner and that a sufficient number of qualified personnel is available in health departments. According to the explanatory note to the draft law, the employer must in all cases ensure that safety of clients and patients is not jeopardised by an insufficient number of staff in the department.

The draft law regulation on the processing of personal data refers to the provision of section 5 of the Privacy Law; however, the proposed amendment will differ in that the employer’s right to process the employee’s vaccine data does not require the employee’s consent. All costs associated with testing and health care at health facilities and vaccination points will be fully charged to extrabudgetary costs in 2021–2023.

Vaccination against COVID-19 in Finland is carried out in accordance with a government decree issued on the basis of section 45 of the Infectious Diseases Act. That is, application of section 48 (1) of the Law on Infectious Diseases requires a separate interpretation of the mandatory vaccination against COVID-19 for medical and social personnel, as well as assessment of the need for other possible legislative changes and a revision of the definition of persons responsible for vaccination against COVID-19.

Simulations carried out by the Department of Health and Human Services have shown efficiency of pre-shift testing of social and health care workers, which could be one way to reduce the risk of infection for clients and patients in health care or elderly care units. Based on these studies, vaccination and regular 48- or 72-hour PCR tests are considered equally effective in preventing the spread of infections.

During the preparation of the Draft Law, it was found that the proposed regulatory model in general provides a better and more complete protection of fundamental human rights than the model based on vaccination and testing. The chosen model of vaccination of medical personnel and social workers will also be able to better protect the health of staff and increase their safety.

These legislative amendments will ensure the obligation of public authorities to take care of the protection of the labor force, as stipulated in Article 18 (1) of the Constitution of Finland, and they fully comply with EU law:

“The right to work and the freedom to engage in commercial activity. Everyone has the right, as provided by an Act, to earn his or her livelihood by the employment, occupation or commercial activity of his or her choice. The public authorities shall take responsibility for the protection of the labour force.” (The Constitution of Finland).

For example, a Digital COVID-19 Certificate or testing is required for everyone applying to work in Italy, Greece, Cyprus, Latvia, Lithuania, France, Slovakia, Slovenia, and from February 1, 2022 in Austria. In Germany, on November 18, 2021, Bundestag approved amendments to the Law on Infectious Diseases, which allow to go to the work-place vaccinated or with a negative test result no older than 24 hours. Bulgaria and Switzerland oblige unvaccinated workers to wear face masks. In many countries, unvaccinated workers are required to be tested regularly. Belgium and Estonia, however, have passed legislation requiring nurses and junior nurses to be vaccinated against COVID-19.

The leaders of the countries at a meeting of the European Council agreed to reduce the validity of vaccination certificates in the European Union from 12 to nine months.

On December 28, 2021, the Finnish Parliament approved an interim amendment to the infectious diseases law. The opposition “True Finns” and “Christian Democrats” voted against the adoption of the law. The interim amendment was approved with 107 votes in “favor” and 32 “against”.

Deputies of the opposition “True Finns” and “Christian Democrats” voted against the law with a proposal to expand the use of rapid tests. Simultaneously, representatives of the ruling parties and the opposition Coalition Party stressed that this is not about forced vaccination.

In the field of social and medical services, only medical workers associated with the risk of close contact with COVID-19 patients, only vaccinated or with a previous illness for a period of no more than 6 months, are allowed to work. A healthcare professional who is medically unable to get vaccinated may present a negative COVID-19 test taken up to 72 hours before going to work.

With reference to section 5 (2) of the Labor Confidentiality Act, the employer has the right to receive and process information about the health status of an employee or student undergoing an internship in relation to compliance in the performance of the tasks specified in subsection 1 of section 1 of the Act.

Constitutional aspect of the issue was considered during the consideration of the draft law by the Government of Finland. The principle of equality before the law, enshrined in the Chapter of Fundamental Rights of the Constitution, is also applicable to legal entities, in particular, when regulation may indirectly affect the legal status of individuals. According to article 18 of the Constitution, everyone has the right to work and freedom to choose their occupation.

Amendments to the Law are based on provisions of the articles of the Finnish Constitution and the existing international legal framework in terms of the ability to respond to pandemic and transboundary emergencies, as well as in accordance with WHO guidelines. A major reform of the Infectious Diseases Law is planned for 2022 and 2023, based on amendments to section 48 and discussions with medical and social departments.

According to the THL Department of Health and Social Development, on Decenber 24, 2021, a record high number of new infections was registered in Finland – 3.223, and on December 1 the same year THL already reported 9.616 new cases of coronavirus infection (COVID-19 Map, Johns Hopkins Coronavirus Resource Center). As of this writing, on January 10, 2022 a new record was reported in Finland – 23,325 new cases with 18 deaths.

In comparison, on the same day the U.S. reported 1,364,418 new confirmed cases COVID-19 in one day January 11, 2022. However, in two days the Supreme Court blocked the Biden administration’s rule requiring larger businesses to ensure that workers are vaccinated against COVID-19 or wear masks and get tested weekly (Johns Hopkins University Indicators).

On January 18, 2022, the Government of Finland held an extensive discussion on the need to update the COVID-19 strategy in response to changes in the situation caused by the rapidly spreading Omicron version. The discussions were based on expert assessments the Government received on the epidemiological situation and the burden on medical care in the coming weeks, and on views about the need to amend the current operating strategy.

An independent judiciary is the cornerstone of the rule of law and access to justice. Article 19 (1) of the Treaty on European Union, read in connection with Article 47 of the Charter, establishes a right to an effective remedy and fair trial before an independent and impartial court. The Council of Europe, particularly through European Court of Human Rights rulings relating to Articles 6 and 13 of the European Convention on Human Rights, also plays an important role in ensuring respect of these principles. The UN, in its 2030 Sustainable Development Goals (Target 16.3), similarly expects Member States to promote the rule of law at national and international levels and ensure equal access to justice for all.

In 2020, judicial independence was also highlighted as one of the crucial prerequisites for effective oversight of proportionality and legality of Member States’ emergency measures adopted to combat COVID-19. The Venice Commission, for example, highlighted that all Member States’ actions to address the COVID-19 crisis must be subject to meaningful judicial review by independent courts at national and European levels. The President of the Council of Europe’s Consultative Council of European Judges (CCJE) equally underlined that the principle of judicial independence should not be called into question during the pandemic or any other emergency situation (The CCJE adopts Opinion).

It is important to note that in the COVID-19 pandemic period, restrictive measures affected the work of courts in the EU Member States. This also had an impact on people’s access to justice, which is important for ensuring the right to effective remedy and fair trial.

Overall, the pandemic accelerated digitalisation of justice. In this process it is crucial to ensure respect of the minimum standards developed under Articles 47 and 48 of the Charter and Article 6 of the European Convention on Human Rights (ECHR), regarding effective participation in proceedings, particularly criminal ones, including one’s right to be present, and the principle of publicity.

Victims have rights to initiate investigation and be heard during proceedings, under Article 47 of the Charter and Articles 10 and 11 of the Victims’ Rights Directive (Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012). Despite restrictions on freedom of movement due to the COVID-19 pandemic, Finnish Criminal Sanctions Agency took steps to enforce these rights.

To mitigate the effects of the pandemic and ensure continuity of justice as much as possible, digital and videoconference tools were used. However, challenges emerged with respect to the judicial system’s ability to work remotely using electronic devices for communication, to access files through databases, and conduct proceedings by videoconference.

The aim of the restrictive measures is to prevent the spread of infections. The restrictive measures aim to protect both prisoners and their relatives and the staff of the prisons. For example, visits have been restricted in all 26 prisons in Finland since the beginning of the pandemic. It is important to note that due to the COVID-19 pandemic in the spring of 2020, the commencement of sentences of up to six months was restricted. This also led to changes in distribution of prisoners’ main offenses and anticipated institutional hours. According to the statement of the Health Care Services for Prisoners, the risk of spreading is significant and restrictions are necessary. A prisoner’s advocate or other attorney or counsel referred to in Chapter 15(2) of the Code of Judicial Procedure as well as other authorities contact the prison staff when they want to arrange a visit with a prisoner, strictly in masks.

It should be noted that all prisons have contingency plans for the coronavirus epidemic. The preparedness group of the Criminal Sanctions Agency actively monitors the coronavirus situation. If need be, new measures can be introduced to the units in accordance with the law and WHO guidelines.

The Chief Physician and head of the Infectious Diseases Department at Helsinki and Uusimaa hospital district, the Finnish Institute for Health and Welfare, on March 22, 2022 reported that Finland recorded 25,705 new lab-confirmed coronavirus cases over one weekend (Järvinen, 2022). The Minister of Family Affairs and Social Services Krista Kiuru on January 7, 2022 said: “There is a threat that Finland will see the emergence of the largest, or one of the largest, new groups of chronic diseases, and that not only too many adults will suffer from a long-term COVID-19, but, at worst, also children” (Kiuru, 2022).

The pandemic in Finland has accelerated development of legal thought. In the context of a difficult epidemiological situation and restrictions, all events of the Forums of legal scholar and lawyers in Finland were held using a video conferencing system. The online format allowed lawyers from Europe and other countries to join the discussion.

Adjunct Professor for Fundamental and Human Rights, Doctor in Social Sciences from Lapland University Stefan Kirchner believes that in a few cases the European Court of Human Rights already has to deal with the effects of the pandemic, including its effects on national judicial systems (Kirchner, 2020). Most of these cases are currently pending at the Court in Strasbourg, but the pandemic has been taken note of in the context of enforcement actions. The COVID-19 pandemic continues to lead to significant human rights challenges, from the duty of States to take positive action to safeguard the right to health to temporary restrictions on rights such as freedom of assembly, which are considered necessary to limit the spread of the SARS-CoV-2 virus.

The COVID-19 pandemic has highlighted vulnerability of the rule of law in the Finnish health care system. Matti Muukkonen in his research indicates violations of human rights during the period of application of restrictive measures and Digital COVID-19 Certificate (Muukkonen, 2022).

Although developed countries have quite functioning legal systems, coherent legal response suitable for every country in the form of adequate damage payments would offer some sort of justice for the injured parties and lower litigation costs. Henna Holtinkoski conducts a comparative research since the paper assesses differences between English and Finnish claimants’ access to justice by using the H1N1 scandal as an example to show the obstacles Finnish claimants face due to legislative and precedential differences between the countries (Holtinkoski, 2021).

In the context of the rapid spread of the coronavirus, its waves and various strains, the global legal community could not foresee and did not have time to develop a universal formula and find an extreme variety of options for resolving the issue of interaction between international law and domestic law when adopting amendments to legislation. Therefore, in the context of the overall fight against the coronavirus pandemic in the world, these provisions of the Finnish Constitution are a transition from the absolute priority of universally recognised norms of international law to the priority of the Basic Law, subject to the condition of inadmissibility of guaranteed restriction of human rights.

In late autumn 2021, development of the epidemic in Finland has rapidly deteriorated. Earlier measures have been insufficient to prevent the epidemic from taking a turn for the worse. In managing the COVID-19 epidemic, Finland has returned to extensive restrictions and recommendations which are guided by national legislation.

Legal regulation, which will impose restrictions such as non-provision of services, access to supermarkets, medical institution, work place, or getting free health services, causes certain differences between social groups, and allows for a reasonable argument considering discriminatory manifestations, indicating violation of human rights and freedoms to choose with no pressure involved, which mismatches the compliance with the EU resolution on COVID-19 vaccines.

The emergency brake system will introduce measures that are in line with current legislation and also measures that require legislative amendments. Perhaps most important, European countries may have breached the International Health Regulations (IHR) by failing to work together to combat COVID-19. The regulations require States to “collaborate ... to the extent possible” (IHR, Article 44) by coordinating medical, logistical, financial, and legal responses to public health emergencies. Only by united efforts of international health cooperation, and the international law used for health purposes the global community can reduce the chance that the next pandemic will be as devastating.

According to Peter Pitts, the president and cofounder of the Centre for Medicine in the Public Interest, “the first step in envisioning an end to the COVID-19 pandemic is to disabuse ourselves of a view of the future where humans have completely vanquished SARS-CoV-2. … The pandemic is over, does not mean that the COVID-19 virus has been eradicated like smallpox.” (Grant, 2022)