Can employers require their workers to get vaccinated against COVID-19?

The possibility that employers require their workers to vaccinate against COVID-19 is a discussion that has been on the rise throughout the world, and Costa Rica does not escape this reality.

In this regard, two different positions have been raised. The first holds that employers can ask their applicants for proof of having received the vaccine, as indicated at the time by the European Economic and Social Committee (EESC).

The second position recognizes that there are workers more exposed to eventual infections. Still, it suggests that the equality of people before the law prevails and that requesting the vaccine in a job offer and applying a dismissal for not having it could be considered discriminatory.

However, in Costa Rica, there seems to be a certain consensus that the vaccination requirement for the general population, including workers in specific sectors, depends on what is established by the health authorities.

In this regard, articles 1 and 2 of the General Health Law provide that one of the essential functions of the State is to ensure public health and that this responsibility falls mainly on the Ministry of Health.

In article 150, said regulation 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 that: “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 Family Code".

For its part, article 3 of the National Vaccination Law indicates:

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 article of the National Vaccination Law mentioned above was submitted to the Constitutional Chamber by means of an optional consultation of constitutionality, resolved by judgment No. 11648-2000 at 10:14 am on December 22, 2000, in which the Constitutional Court determined that the regulations in question do not violate the right to autonomy of the will and at the same time guarantee the protection of public health.

Taking into account the provisions of the transcribed norms, as well as the explanatory memorandum of the project being consulted, this Chamber does not consider that the consultants are right, saying that establishing the mandatory nature of vaccines 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 rights of man 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.

Therefore, even though, at this time, vaccination is voluntary, there is no doubt that the Ministry of Health has the powers to decree the mandatory nature of the vaccine against COVID-19.

Once the power of the Ministry of Health to decree the obligation to get vaccinated against COVID-19 has been clarified, its importance should be transferred to the workplace.

And it is that, in accordance with article 404 of the Labor Code, all forms of discrimination at work are prohibited; Therefore, requesting a vaccination certificate as a requirement for a job offer or as a condition for permanence in a company could be seen as a discriminatory act due to health conditions, especially if it is a vaccine that is not available yet to the general public.

However, there would be an objective cause to justify the implementation of said measures if the Ministry of Labor or the Ministry of Health decides that the application of the COVID-19 vaccine is mandatory for a specific labor sector.

In this sense, it is essential to remember that the employer must adopt the security measures dictated or recommended by the Ministry of Labor, the National Insurance Institute, or the Ministry of Health, following the provisions of article 282 of the Code of Job:

Every employer is responsible for the obligation to adopt, in the workplace, the measures to guarantee the occupational health of the workers, following the terms of this Code, its regulations, the occupational health regulations that are promulgated, and the recommendations made in this matter by both the Occupational Health Council and the inspection authorities of the Ministry of Labor and Social Security, the Ministry of Health and the National Insurance Institute.

Therefore, until the vaccine is available to the general population and there is no decree by the Ministry of Health or the Ministry of Labor that determines its obligation, it would not be possible for the employer to impose the obligation to vaccinate or sanction their non-compliance.

At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.


About the Autor

Jairo José  Cerdas

Jairo José Cerdas

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