COVID-19 Experience in Latin AmericaPublished on:
COVID-19: Testing and vaccination for Employees, right or obligation?
The Constitution establishes the effective protection of individual rights -including, the right to life, health, personal integrity- as part of the essential purpose of the State, which must guarantee a compatible exercise of these rights with the general welfare of its citizens, and as a guarantee, the State must adopt measures for the protection and restoration of the life and health of individuals and communities, for purposes of preventing and treating diseases -including detection tests and vaccines against COVID-19- subject to the protection of the integrity of the people who cannot be obliged to undergo examinations or medical procedures, unless there is an imminent danger to their life or that represents a risk to public health, such as a pandemic.
Notwithstanding labor statutes, the Ministry of Public Health dictates the rules for the prevention and control of diseases in the workplace; and is responsible for guaranteeing the population the vaccines approved and recommended by the World Health Organization, with the legal authority to order their mandatory nature, which it has not done thus far perhaps because these vaccines have only been validated for use for emergency purposes only.
The constitutional duty - legal and moral responsibility - of individuals, includes:
Duty to abide by and comply with the Constitution and the laws, including specific provisions and orders from the health authorities; particularly those related to the control of spread diseases, such as COVID-19.
Duty to respect and submit to the corresponding authorities (i.e. Ministries of Public Health and / or Labor).
Duty to avoid actions or omissions that interfere with health management.
Duty to take care of and respect such individual’s own health, that of others, and that of the community.
From a labor perspective, the Constitutional Court has ruled that the protection of the safety and health of third parties prevails over individual freedom; in this sense, the obligations of the parties shall be as follows:
The employer is responsible for "health surveillance", and must guarantee adequate conditions of safety, health, hygiene and work environment, for which it will provide the necessary protection and control equipment to prevent diseases.
The worker must undergo a medical examination to verify that such worker does not suffer from a contagious disease that prevents said individual from working, or represents a danger to other workers or persons related to the company. Thus, workers contribute to the employer's obligation to (i) preserve health, (ii) assess occupational risks and (iii) prevent them in the workplace. This obligation is subject to the protection of the right to privacy, dignity and confidentiality of information related to one’s health.
Consequently, COVID-19 testing and vaccination constitutes the right of individuals - whether workers or not - before the State; whereas, with respect to the employer, the worker is obliged to submit to COVID-19 tests, subject to compliance with abovementioned conditions; likewise, workers shall rigorously comply with the preventive measures imposed by the employer, notwithstanding that currently, it cannot be affirmed that vaccination may be included within these preventive measures, because it is not mandatory in the country.
The infection or non-vaccination of COVID-19 as a cause of suspension or termination of the employment relationship
Despite the fact that contagious disease is a valid cause for suspension of an employment agreement, for which the worker has the right to receive a compensation for common sickness - except for health personnel for whom the Occupational Risk Insurance subsidy applies since it is considered as an occupational disease – this same possibility is not available in cases of non-vaccination, thus, the worker shall have the right to terminate the agreement due to a serious violation by the employer, in the event that the employer proceeded with the suspension under this scenario.
The spread of the disease does not constitute a serious violation which could result in termination of the employment agreement for just cause; nonetheless, the refusal to adopt preventive measures or to follow procedures indicated by the law, the authorities or the employers, does constitute a violation, which could be applied to the refusal to take the test for detection; however, since the vaccination is not compulsory, it will be under the court’s discretion to evaluate just cause if the employer exercises said termination. In no case, shall it be alleged as just cause that a worker has been a source of contagion for others.
Lastly, the serious danger to the safety or health of the worker due to non-compliance with preventive and security measures, constitutes a fault of the employer that grants the worker the right to terminate the agreement for just cause.
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