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Felix Uhlmann, from the start of the Fall Semester on 20 September, UZH is requiring all students at all levels to hold a Covid certificate, i.e. they either have to be vaccinated, have recovered from Covid-19, or recently tested negative. Are these measures justified from a legal point of view?
Felix Uhlmann: Yes, last week the Federal Council allowed higher education institutions to make Covid certificates mandatory. The certificates enable the universities to use their lecture halls at full capacity, otherwise they have to restrict occupancy to two-thirds.
What is the legal basis for these measures?
The legal basis was introduced into federal law with Art. 19a of the COVID-19 Special Situation Ordinance. According to the resolution of the Executive Board of the University, the faculties can decide how to implement the measure in individual cases.
Does this also include a right to issue sanctions? Can the University hand out fines if someone violates the rules?
The University may initiate disciplinary proceedings against offenders, or report them to the cantonal authorities.
The University wants to check compliance with the requirement using suitable measures. Are these checks legally permissible?
UZH is obligated to effectively implement requirements issued by the federal government. To do this, checks are required.
The University is for now covering the costs of Covid tests for those who can’t or won’t get vaccinated. How do you rate this concession in legal terms?
The new measures were introduced by the federal government at fairly short notice, both for universities and the students. Covering the costs of tests, at least for a transitional period, is a proportionate measure to account for the short notice given when the certificate requirement was introduced.
Are the accompanying measures of UZH (free tests, alternatives to on-site teaching) enough to maintain the right to education and access to university?
You have to keep in mind that restrictions can’t be avoided at the moment, whether that means using Covid certificates, restricted capacity and stricter safety concepts, or other provisions. The faculties of UZH should seek solutions that reconcile the conflicting interests in the best way possible. There is no ideal solution that fits all situations.
Ultimately, we need to look at the individual cases, which is why I think a decentralized approach involving the faculties makes sense. For large lectures and courses with little interaction, video streams are certainly a legally viable alternative. The requirement for students to hold Covid certificates, mitigated by free tests, should generally be permissible, for as long as safe teaching isn’t possible without a certificate.
So the basic right to education is maintained?
I would assume so.
Basically, the University’s measures are here to protect all members of UZH and help contain the pandemic. How long can they be legally justified? When would the requirement to hold a Covid certificate for on-site classes have to be lifted?
The Federal Council has stated that the primary goal of the current measures is to protect capacity in the hospitals’ ICUs. We’ll see when and if we reach this goal.
Private organizers and also the University will continue to be authorized to require participants to hold a Covid certificate if they want to take part in voluntary events, social gatherings, further education courses, etc.
I think that the certificate will stay with us for some time. Using the certificate for a short transition period, as originally intended by the Federal Council, is no longer an option, primarily as a result of low vaccination numbers. And should Swiss voters reject the COVID-19 Act in the upcoming referendum in November, the situation will of course be completely different again ...