The COVID-19 vaccine and its effects on employment relationships: the landscape in Latin America
The COVID-19 health crisis has brought various challenges in every country, and vaccination is one of them. In this article we will review how vaccination is affecting workplace in Chile, Colombia, Mexico and Peru.
The COVID-19 crisis that has spread across the world has brought various challenges to every country, vaccination being one of them.
In Chile, vaccination is voluntary, since the vaccines developed to date have been considered experimental by the World Health Organization and, consequently, they may only be used on people who freely decide to be inoculated.
In this scenario, the Chilean government has promoted a process for vaccinating the population using various mechanisms, and as a result, on September 11, 2021, 13,236,384 people had been fully vaccinated (single dose and second dose), which amounts to 87.08% of the target population.
In the context of employment, employers in Chile cannot ask their workers to be vaccinated against COVID-19 as a requirement for returning to work, because it is a voluntary measure. Including vaccination as a condition for returning to workplace would be qualified as an infringement of constitutional rights to life and physical and intellectual integrity (article 19 no 1 of the Political Constitution of the Chilean Republic), as well as of the right not to be discriminated against (article 19 no 16 of the Political Constitution of the Chilean Republic).
This was confirmed recently by the superior courts of justice in Chile, which acknowledged that having the COVID-19 vaccine is voluntary, and employers cannot ask workers to be inoculated, let alone make it a condition for continued employment (judgment by the Antofagasta Court of Appeals, Appeal Roll no 7596-2021, dated August 19, 2021).
Similarly, the Work Directorate – although it has not officially pronounced a decision on the subject – has said that the COVID-19 vaccination is a voluntary decision of workers, in line with what has been determined by the Ministry of Health, and for that reason employers are not allowed to restrict their employees from returning to workplace if they have decide to not to vaccinate (Ordinary Decision no 1744 by the Work Directorate, on July 1, 2021).
Therefore, employers are not authorized to ask their workers to be vaccinated against COVID-19, either as part of the return to workplace program, or as a condition for hiring or to retain their employment contract with the employer. Employers are authorized, however, to adopt other measures designed to reduce the risks of COVID-19 infections, which are in line with the health instructions delivered by the Health Ministry in Chile.
Similarly, employers are not entitled to terminate employment contracts on the ground that the worker has freely chosen not to be vaccinated against COVID-19 or to restrict unvaccinated workers to access employee’s offices; as it would be considered a a breach of workers’ constitutional rights.
Despite this, and in view of what other countries have done in relation to making vaccination a mandatory requirement (especially for individuals in certain target groups with specific health risks), it cannot be ruled out that, in the future, Covid19 vaccines may start to be required as a mandatory measure for anyone presenting certain types of risks.
Colombia has not stayed outside the debate emerging from the COVID-19 pandemic, over whether vaccination should be mandatory among the working population.
In the period between the pandemic beginning and September 2021, COVID-19 vaccinations in Colombia have been strictly voluntary; and it does not appear - in the foreseeable future at least - that the legislation will adopt a stricter or more restrictive standard.
The Work Ministry in Colombia confirmed in Circular 047 on August 5, 2021 that vaccination is strictly voluntary, by stating that “(…) when faced with refusal to be vaccinated it is not feasible to make it a requirement to enter or remain in a job, because this would amount to a clear breach of workers’ fundamental rights”.
Having said that, and to strike a certain degree of balance, the same circular mentions that “(…) a strong information program is recommended on raising human awareness and on individual responsibility, focusing mainly on the protection of life, health and welfare for everyone, so that individuals will choose to have the vaccine as a fundamental component for returning to their activities, and guaranteeing that workers are able to attend vaccination centers in their working hours (…)”.
The balance that has been sought by the Work Ministry – between confirming the idea that vaccination is voluntary and inviting vaccination to be promoted among the working population – leaves serious doubts and question marks which are particularly important.
The first, and perhaps most obvious, is whether an employee may refuse to return to the workplace if there is not enough evidence that all employees have been vaccinated. And whether, if this decision is informed, if the employer is allowed to enforce the employee to assist and return to the workplace.
Additionally, and linked to these matters, a doubt arises regarding employer’s liability on potential infection during the process of returning to office, and even considering that a portion of the workforce has not been vaccinated; including where the employers have taken reasonable health protection measures, such as requiring masks to be worn all the time, staying at the necessary distance from others and installing washbasins and hand gel dispensers.
There are also doubts over the degree of liability that employers might be assuming where one of their workers – who has not been vaccinated against COVID-10 – enters a client’s premises to provide services and infects the client's employees with COVID-19.
All of these concerns, and others, have to be resolved on the basis of principles of reasonableness and fairness, by seeking to keep the working population safe above all other considerations.
It is not a mandatory requirement in Mexico to be vaccinated against COVID-19. The Mexican Federal Government has stated that nobody may be forced to be vaccinated against their will, nor may penalties be imposed for not being vaccinated.
In Mexico, the Mexican Vaccination Strategy commenced officially on December 24, 2020 with the vaccination of adults aged over 70. Between that date and September 2021, the program has continued by giving vaccines to the rest of the adult population; meaning anyone aged over 18. On the date of writing, more than 112 million doses have been given and slightly over 51 million people in Mexico been fully vaccinated, which is 40% of the whole population of Mexico.
The vaccines that have been given in Mexico – all with authorization for emergency use - are from a range of manufacturers (Pfizer-BioNTech, AstraZeneca, Cansino Biologic, Sputnik V, Sinovac, Johnson & Johnson and Moderna) and all were supplied by the Federal Government, a few were acquired directly from the manufacturers and others donated by the Government of the United States of America. Although the Government has not officially prohibited direct purchases of vaccines by private parties, until now it has not been possible to buy a vaccine in Mexico in the private sector, because they are only available for the Government.
Unlike in the United States, there is not a significantly sized anti-vaccine movement in Mexico; in actual fact, according to a survey published by Ipsos in March 2021, more than 80% of the adult population in Mexico expressed a wish to receive the COVID-19 vaccine. The problem is that vaccines have been in short supply in Mexico and many towns, especially those at a distance from large urban areas, have not received sufficient numbers of doses, which has slowed down the vaccination process, especially among the younger population.
In Mexico, the third wave is expected to end shortly so the Federal Government has decided to reduce restrictions preventing shops from opening and imposing social distancing throughout the country, and to allow larger numbers of people in all public places, offices, shops, social, sports, religious events, and the like.
In this scenario, a large portion of the private sector has decided it is time to return to workplaces with practically the whole of the regular workforce, to the extent allowed by the health rules. It is important to consider, however, that although it is desirable for everyone to be vaccinated, there are no provisions in Mexico that allow employers to ask their workers to be vaccinated. It must be remembered in fact that clinical records and information on the health of individuals are sensitive personal data as determined in the Federal Law on the Protection of Personal Data in the Possession of Private Parties, which means that workers could validly reserve the right to inform their boss or not as to whether they have had any of the vaccines against COVID-19. Moreover, if anyone is dismissed or not allowed to enter the workplace due to not being vaccinated, the employer could incur liability under labor law or even a criminal offense of discrimination, especially considering that in Mexico some people have not been vaccinated not because they did not want to be, but because not enough vaccines were available.
Because of this, to prepare for employees returning to workplaces to work in person, companies may carry out pro-vaccination campaigns, give incentives and provide information to their employees on the risks and benefits of receiving the COVID-19 vaccine, although they must be careful not to impose sanctions for that reason.
Due to Peru being one of the hardest-hit countries by COVID-19, the Peruvian government has focused its efforts on vaccination processes for the population. Therefore, with the average fully-vaccinated figure nearing 48% of the population, the impact of these processes on employment relationships is imminent.
Under the National Universal Vaccination Program against COVID-19, on June 21, Law no 31255 was published, promoting the purchase and supply of vaccines against COVID-19 by the private sector so that they may be used for their employees, and for this to contribute to Vaccination Program and increase the pace of vaccinations among the country's citizens. To date, however, the Regulations on this law have not been published and this alternative could not be put into practice.
Currently, vaccinations have been authorized for individuals aged over 18 in Lima, which could have a positive impact on a sector of the population that accounts for a large part of the economically active population. So, it would be prudent for employers to assess the potential impact of vaccination processes among their employees, placing particular emphasis on plans for returning to in-person working systems, the provision of vaccination incentives, or the processing of medical information – including vaccination information – of employees, among other issues.
A first point to take into account is that, under the Vaccination Program, vaccination is a free and voluntary choice so individuals have the right to be able to decide whether or not they want to receive the COVID-19 vaccine which may not imply an infringement or breach against public health or of the Program. In a labor law context, the “free and voluntary” choice rule could mean that workers, besides deciding not to be vaccinated, may refuse to disclose information on their vaccination status, which will complicate the implementation of procedures for returning to the workplace. Our recommendation on this point involves designing return plans with an attempt to include the various groups of workers, and with observance of the health and safety measures approved by the government.
The country's measures to encourage vaccination among the population included the approval of Law no 31334, which gives public and private sector workers the right to time off work to attend a COVID-19 vaccination appointment. So, by coordinating with the company's human resources department (with at least 48 hours’ advance notice), workers will be able to request paid leave of up to 4 hours on the day they have arranged to have a vaccine.
In relation to the processing of medical information – including any vaccination information – the data protection authority, in Consultative Opinion no 32-2020/JUS-DGTAIPD specified that whenever vaccination data are collected and processed by employers for the purpose of fulfilling the legal duty to monitor workers’ health, the workers’ consent will not be required, which simplifies this process significantly. It needs to be noted that the absence of “prior consent” does not restrict the need for obligations such as the implementation of the appropriate security measures for data of this type, safeguarding the confidentiality of the data, informing the workers of the purpose of collecting their data, and processing and storing their data, in addition to any procedural obligations that might apply in each case.
In these cases, our recommendation involves putting in place a procedure for collecting employees’ vaccination data, in virtual or physical formats, informing them of the purpose of collecting that data and the characteristics of the processing that will be done by the company, as part of the actions that are being carried out to ensure a safe return to the workplace.
And a last element to think about is that vaccination is a determining point in relation to returning to the workplace. It is not the only factor to be considered, however, and an assessment must be made of all of the factors that will be important for the company's activities and workers. One thing that is certain is that vaccination must not cause discrimination under any circumstances. Although we continue to be a long way from the long-awaited “return to normality”, we believe that the arrival of new lots of vaccines and the encouragement measures implemented by the government will ultimately trigger the final return to the workplace of vaccinated employees, creating a new “normality”.