Following the criteria of September 28, 2021, of the National Vaccination and Epidemiology Commission, made public by the Ministry of Health, employers in the private and public sectors can force their workers to apply the vaccine against COVID-19. However, in the absence of the full text of the executive decree that will be published in the official newspaper La Gaceta and given the expectation that has arisen from this regulatory change, some preliminary comments are made on the impact of this decision on the private sector employers.
1. Background
Articles 1 and 2 of the General Health Law provide that one of the essential functions of the State is to ensure public health, this responsibility mainly falling on the Ministry of Health.
Said regulation, in its article 150, places particular emphasis on the mandatory nature of vaccines:
"Vaccination and revaccination against communicable diseases determined by the Ministry are mandatory"
The preceding is supported by the provisions of numeral 46 of the Civil Code, which establishes:
"Any person may refuse to undergo a medical or surgical examination or treatment, with the exception of cases of compulsory vaccination or other measures related to public health, occupational safety and the cases provided for in article 98 of the Code of Family".
For its part, article 3 of the National Vaccination Law establishes:
"In accordance with this Law, vaccinations against diseases are mandatory when deemed necessary by the National Vaccination and Epidemiology Commission, which is created in this Law, in coordination with the Ministry of Health and the Costa Rican Social Security Fund."
It is worth mentioning that the content of the aforementioned article 3 of the National Vaccination Law was submitted to the Constitutional Chamber by means of an optional legislative consultation on constitutionality, resolved by resolution 11648-2000 at 10:14 am on December 22, 2000, in which was determined that the regulation in question does not violate the right of autonomy of the will, and at the same time guarantees the protection of Public Health.
"Taking into account the provisions of the transcribed norms, as well as the explanatory statement of the project being consulted, this Chamber does not consider that the consultants are right, when saying that by establishing the mandatory nature of vaccines it is detrimental to the right of autonomy of the will. Health as a means and as an end for man's personal and social fulfillment constitutes a human and social right whose recognition is beyond dispute. It is one of the human rights that emanates from his dignity as a human being. From this right arises both for the individual and the organized community, as well as for the state itself, a responsibility regarding health. In international instruments and in constitutional declarations of social rights, the right to health is included, to whose recognition must be added the imposition of the duty to take care of one's own health and that of others".
Following the above, it is important to establish that the most relevant legal criterion to determine the mandatory nature of the COVID-19 vaccine for specific sectors of the population is that of the National Vaccination and Epidemiology Commission of the Ministry of Health. Furthermore, the Ministry of Labor and Social Security reached this same conclusion, who through the DAJ-AER-OFP-742-2021 criterion, determined:
"The employer is not empowered to require its workers to be vaccinated against COVID19. The only exception to this rule is for officials of the Ministry of Health, the Costa Rican Social Security Fund and those who work in the network of direct care services in the first line of the National Insurance Institute, who must apply said vaccine."
However, this is a situation that could vary, if the National Vaccination Commission makes the decision to make it mandatory for the entire population, especially considering that, at any given time, it is expected to have sufficient stocks to cover all the population, including the workers."
2. Current situation
On September 28, 2021, the National Vaccination and Epidemiology Commission "approved the mandatory nature of the Covid-19 vaccine for all public sector officials, as well as for those private sector employees whose employers, within their internal labor provisions, have chosen to incorporate said vaccination as compulsory in their work centers".
Consequently, as of the publication of the decree in La Gaceta that makes the criterion mentioned above official, private sector employers may request their workers to get the COVID-19 vaccine. Regarding this new employer power, the following observations must be established:
How should the obligation of workers to be vaccinated against COVID-19 be regulated within the company?
Following the criteria of the National Vaccination and Epidemiology Commission, it is only provided that the employer must incorporate the obligation of the worker to be vaccinated against COVID-19 through "internal labor provisions." Therefore a simple guideline issued by the employer in this sense could be enough to require employees to be vaccinated.
However, the ideal would be to carry out an internal policy or guideline that regulates the various aspects associated with the obligation of company employees to have the COVID-19 vaccine. Hence, the preceding gives more formality to the employer's decision, especially to better support the application of disciplinary sanctions for non-compliance with the employer's provisions.
Said regulation should contain aspects such as the period in which the worker must have one or both vaccines, sanctions in case of non-compliance, documents that must be provided to demonstrate the vaccination, informed consent on using this information, etc. Likewise, the obligation of the worker to opt for an additional dose of the vaccine could be envisaged in case the health authorities eventually deem it necessary.
It is relevant to establish that the employer can only implement the mandatory vaccination once the executive decree that refers to the criteria of the National Commission for Vaccination and Epidemiology on the compulsory nature of the vaccine is published in La Gaceta and once the internal policy of the company that develops said obligation is published and made known to the workers.
How to proceed in case of non-compliance of the worker
Since the vaccination is compulsory, the company should determine a reasonable period in which it is possible to demand that workers have at least one vaccine and when they must necessarily have the complete vaccination schedule. Likewise, since it is necessary to apply the vaccine to carry out work within the company, the employer could prevent access to workers who do not have said condition to the workplace according to the specified period and sanction the fault.
In this case, the advisable thing would be a progressive discipline process so that if the worker repeatedly fails to comply with said obligation due to circumstances attributable to himself, he could eventually proceed with dismissal without employer liability. Said warnings should necessarily be in writing. The policy should also define the number of faults that make up the iteration. However, before proceeding with the dismissal without employer responsibility, each case must be evaluated according to the extrinsic circumstances (e.g., availability of vaccines) or intrinsic to the worker.
In the case of pregnant or lactating workers, as in the case of other workers who have a protection jurisdiction against dismissal and in case they do not want to be vaccinated, they would be penalized for not complying with the employer's decision. If dismissal is possible without employer liability, a procedure would be followed before the Inspection Directorate of the Ministry of Labor and Social Security to demonstrate the severe misconduct that motivates the termination of the employment relationship. In this case, the other option would be to terminate the employment contract by mutual agreement in a RAC center.
Except for the previously mentioned workers who have special protection against dismissal, the other option would be once the vaccination against COVID-19 is required according to the company's guidelines and in the event of the worker's non-compliance, proceed with the worker's dismissal with employer responsibility. The normative basis for the business decision in the dismissal letter would be the criteria of the National Vaccination and Epidemiology Commission and the internal regulations of the company, concerning the duty of the company to preserve the right to health of the rest of the coworkers and people outside the company with whom the worker interacts in his work. The preceding to demonstrate the objectivity of the termination and its non-discriminatory nature.
Workers who work by teleworking
Although the National Vaccination and Epidemiology Commission does not refer to those who work teleworking, it is necessary to determine whether workers who exclusively carry out their work through teleworking will be required to be vaccinated. If these workers must occasionally go to the workplace or physically interact with people, colleagues, clients, or suppliers outside the company, said obligation to apply the vaccine would be further substantiated.
Need to sign an informed consent
When workers are required to vaccinate, they must demonstrate that they have already complied with this obligation. In addition, the treatment of this information must respect Law No. 8968 of Protection of the Person against the treatment of their personal data. For this, there must be informed consent that will indicate, among other things, the purpose pursued by the company in obtaining this data and the people who will have access to it.
On the other hand, being sensitive information, it is necessary that the company and the workers who have access to it keep the duty of confidentiality and not disclosed to third parties the data obtained.
In which cases the worker can refuse to get the vaccine
The Constitutional Chamber has examined the possibility that workers refuse to be vaccinated against COVID-19 to protect their health rights. In this sense, said court determined: "it should be noted that mandatory vaccination for cases of COVID-19 is not absolute, but, as noted, the decree itself contemplates the possibility that the person presents a medical contraindication. It should be added that it is public and well known that the authorities of the CCSS have published the "Manuals of Procedures for the execution of vaccination against COVID-19 in the health establishments of the Costa Rican Social Security Fund", in which they have been justly explained what are the medical contraindications for vaccination. "(Constitutional Chamber of the Supreme Court of Justice, resolution 2021-14053)
On the other hand, the Constitutional Chamber in resolution 2021-15777 determined in the case of an official of the CCSS who alleged conscientious objection for ethical and religious reasons that those arguments initially do not constitute a determining reason for not applying the vaccine against COVID-19. In this exercise of weighing constitutional rights, the right to health prevailed since it was estimated that the mandatory vaccination of CCSS personnel was based on medical criteria that met the requirements of proportionality, necessity, and suitability. Likewise, the Constitutional Chamber recalled that the vaccination obligation is not absolute, so the worker may not comply with it if specific medical criteria are provided in the particular case.
Companies with outsourced personnel
The outsourcing service provider may be required to have COVID vaccines, following the criteria of the National Vaccination and Epidemiology Commission -19. In this case, it would be the company that provides services that must necessarily regulate, through its own policies or internal regulations, the conditions to make this obligation viable for its own personnel and in accordance with the requirements of the company that hires its services.
The commercial contract between the user company and the company providing the service must so indicate it. Also that it will be the outsourcing company responsible for exercising, if necessary, the disciplinary regime regarding its own personnel.
Hiring and recruiting
It would be possible to require workers to have the vaccination scheme as a requirement of the selection process, basing said decision on the internal regulations that establish the mandatory nature of the vaccine against COVID-19. Therefore, said requirement would not have a discriminatory purpose under the aforementioned.
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