1. Executive decree no. 43544-S
All persons who are not health care officials on the front line (public or private sector) or who do not require access to health facilities are exempt from the mandatory use of the mask as personal protective equipment under the executive decree No. 43544-S, which was published in Scope No. 94 of La Gaceta No. 86 of May 11, 2022. Therefore, the mandatory use of masks is eliminated in businesses with a sanitary operating permit and public transport services.
Despite the preceding, it is essential to establish that the publication of the decree mentioned above does not prohibit private sector companies from demanding its use when it is justified as an objectively supported safety and hygiene measure.
a) Basis that allows the employer to demand the mandatory use of the mask in the workplace
Under article 66 of the Political Constitution, the employer is empowered to impose the necessary occupational health measures to preserve hygiene and safety at work. In this sense, it is provided that: "All employers must adopt in their companies the necessary measures for hygiene and safety at work."
On the other hand, article 284 of the Labor Code establishes the employer's obligations "to provide the equipment and element of personal protection and safety at work and ensure its use and operation."
Following the preceding, the Labor Code enshrines as obligations that the worker must comply with: "use, conserve and care for the equipment and elements of personal protection and safety at work, which are supplied" (article 285) and "rigorously observe the preventive measures agreed upon by the competent authorities and those indicated by the employers, for the safety and personal protection of themselves or their co-workers, or of the places where they work" (article 71, paragraph h).
Therefore, despite the publication and entry into force of Executive Decree No. 43544-S, in our opinion, the company may require, as an additional measure that aims to reduce the risk of contagion of COVID-19 in the workplace, the use of the mask in case it is considered necessary, when evaluating objective reasons such as the company's line of business, the danger of contagion under the conditions of the workplace, the position and work carried out by the employee, etc.
In this sense, it is essential that it is the department, the commission, or an external expert in occupational health that, in writing, based on health, technical and medical criteria, adopts the company's decision to require the use of the mask as mandatory for part or all of the workers in the workplace.
Likewise, those reasons that support the decision that the worker uses the mask are the ones that the company would eventually have to demonstrate before a lawsuit or administrative claim in which it is questioned the reasonableness of the decision made or whether it is discriminatory.
At that time, it will be essential to bear in mind, as has already been said on several occasions, that since it is a virus that spreads primarily through the air, the use of masks can avoid a high accident rate or a number of infections that not only affect who gets sick but also co-workers, customers or suppliers, with serious damage to people's health and with economic repercussions for the company (the consequence of lost working hours, etc.).
In addition, to make this decision enforceable, it must be based on formal and written communication with the workers. Therefore, in the said document, it is necessary to establish, among other aspects, under what conditions the use of the mask is mandatory.
Suppose after that the worker refuses to comply with the provision. In that case, he could be sanctioned in case of non-compliance, as recently confirmed by the Department of Legal Advice of the Ministry of Labor and Social Security (MTSS). In this sense, through the legal criterion DAJ-AER-OFP-493-2022, the MTSS determines that it is possible to eventually proceed with the dismissal without employer responsibility of the worker who disregards the company's decision on the mandatory use of the mask at work. The application of the previously described sanction would be based on subparagraph h) of Article 81 of the Labor Code, which refers to the worker who fails to comply repeatedly and manifestly.
Likewise, to justify the application of the dismissal without employer responsibility, according to the MTSS, the following steps must be followed:
"a) Include the use of the mask within the prevention measures that are applied in the workplace. For these purposes, it must modify the regulations, policies, or guidelines that are in force in terms of occupational health.
b) Communicate the introduction of this measure to the workers. In accordance with the provisions of subparagraph b) of article 4 of the General Regulations on Safety and Hygiene at Work, the employer must not only communicate the introduction of the use of the mask as a preventive measure in the workplace but also must train and make his staff aware of the importance and necessity of its implementation.
c) Establish a verification mechanism for compliance with this measure, which allows for identifying workers who have not complied with the established measure.
d) Make a warning to the workers so that they correct their behavior or, failing that, present proof that justifies their refusal to use it, such as a medical prescription." ( DAJ-AER-OFP-493-2022)
On the other hand, following the provisions of article 284 of the Labor Code, if the company establishes the use of masks as mandatory, it is the employer himself who must provide them, since it constitutes personal protection equipment.
b) Can the employer force the worker not to wear the mask if the latter wishes to use it?
In general, if the worker voluntarily wishes to wear the mask in the workplace, the employer cannot force him not to use it because, as has been shown to date, this prevents the spread of the virus and also protects the health of people considered to be at high risk.
c) Other considerations
Version No. 9 of the General Guideline for owners and managers of Work Centers due to COVID-19, which was in force and was published on April 1, 2022, also provides as a general obligation "the use of a protective mask in the workplace environment." Likewise, the duty of employers to guarantee personal protective equipment and ensure that employees use it correctly is indicated. On the other hand, according to the guideline, it is expressly determined that in the case of call center workers, those in charge of maintenance, cleaning, and disinfection of facilities and when a worker with symptoms compatible with COVID-19 or who was in contact with confirmed or suspected people, the use of the mask is mandatory.
Under article 6 of the General Law of Public Administration, as executive decree No. 43544-S constitutes a legal norm hierarchically superior to the guideline, the latter's content that contravenes the decree would be tacitly repealed.
On the other hand, it is important to highlight that the signing of executive decree No. 43544-S was recorded with an erroneous date in its publication in the official newspaper La Gaceta. According to the document, it is mentioned that the president signed it on May 7, 2022, when he had not yet assumed this position.
Therefore, regardless of whether the said error may nullify or delay the entry into force of Executive Decree No. 43544-S, while this matter is corrected or another decree is issued in its place, the possibility that the employer may demand the use of the mask in the workplace as mandatory can be based on the arguments and considerations previously described.
2. Executive Decree No. 43543-S
Executive Decree No. 43543-S, which was published in the Scope No. 94 of La Gaceta No. 86 on May 11, 2022, establishes the following:
"Article 1.- All public institutions of the State and the Costa Rican private sector are urged not to apply dismissal sanctions in the cases of officials who do not have the Covid-19 Vaccination Scheme.
Article 2. The Executive Power requests the National Vaccination and Epidemiology Commission, through updated technical and statistical studies, to indicate and recommend to the Executive Power which officials may be affected by dismissal sanctions due to non-compliance with the obligation currently in force. In the same sense, it urges to carry out technical studies that demonstrate the effect of compulsory vaccination on the percentage of the population that is actually vaccinated, including an analysis of international evidence."
Concerning the previously described decree, it is necessary to make the following comments.
First. The decree does not repeal or modify the agreements of the National Vaccination and Epidemiology Commission or executive decree No. 42889-S, which empowers private sector employers to require vaccination as mandatory against COVID-19, according to the terms set by the National Commission for Vaccination and Epidemiology (CNVE).
The previously mentioned is also tacitly denoted in article 2 of executive decree No. 43543-S, which determines: "The Executive Power requests the National Commission for Vaccination and Epidemiology, through updated technical and statistical studies, to indicate and recommend to the Executive Power, which officials may be affected by dismissal sanctions in the event of non-compliance with the obligation that currently governs”.
Therefore, what was agreed by the CNVE on February 10, 2022, in the extraordinary session V-2022, is currently in force: the obligation of the third dose of the vaccine against COVID-19 for public sector workers and people between 12 and 18 years. Likewise, through said agreement, employers in the private sector were once again granted the possibility of requesting a third dose from their employees, as long as the internal policy of the workplace so provides.
On the other hand, it is essential to establish that, unlike the application of the first, second and third doses, on May 2, 2022, the CNVE approved the voluntary application of the fourth dose against COVID-19 in the 50+ year-old population, and the immunosuppressed (12 years and over). Likewise, unlike previous occasions, the CNVE did not agree to the mandatory application of the fourth dose for any sector of the population, nor did it expressly empower private sector employers to request it to their employees.
In addition, it is important to emphasize that, among other regulations, and according to the General Health Law, the National Vaccination Law, and its regulation, it is the CNVE, in coordination with the Ministry of Health and the Costa Rican Social Security Fund, who has the power to establish the compulsory nature of vaccination and in which sectors of the population it should be applied.
Therefore, as on previous occasions, the CNVE, under its technical criteria, has empowered employers in the private sector to, through their internal policies, request their workers to be vaccinated against COVID-19. However, that entity would also be the one that could eventually suppress said provision.
In this sense, following the second sentence of article 2 of the executive decree, the CNVE is urged to "carry out technical studies that demonstrate the effect of mandatory vaccination on the percentage of the population that is actually vaccinated, including an analysis of international evidence." Therefore, it is foreseeable that based on the findings or conclusions of the CNVE, it will be said entity that decides whether to maintain or abolish the agreements that allow compulsory vaccination against COVID-19.
Second. In the case of private sector companies, it is "urged" not to dismiss workers who have not received the COVID-19 vaccine. Therefore, it is a possibility, but not an obligation, to be followed by employers in this sector.
Likewise, although the regulations and agreements that empower employers in the private sector to require mandatory vaccination in their workplace are in force and by law, there is no express prohibition to sanction non-compliance against their vaccination policies, nothing prevents the sanctioning regime from being followed and even the application of dismissal with or without employer liability.
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