Wednesday 5 October 2022

Can a business request vaccination as an entry requirement?

Lawyer explains this measure complies with current regulations.

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04 October 2022 - At The Banks - BCCR

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QCOSTARICA – A bar in Cartago is one of the first businesses to restrict entry to customers who have not been vaccinated, both doses, against covid-19. To enter, customers must present their vaccination card.

The initiative was promoted by its owner, Mario Solano, with the aim that more people apply the doses.

This measure has generated positive and negative reactions. Some consider it an excellent measure to incentivize immunization, but others argue that it is illegal.

For its part, the Cámara Costarricense de Restaurantes (Cacore) – Costa Rican Chamber of Restaurants – says that despite the right of restaurant owners to reserve the right of admission, the measure would go against the economic reactivation of a sector hit hard by the pandemic.

Vaccination card issued by the Caja at the time of applying the vaccine.
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Jorge Figueroa, president of Cacore, said that demanding compulsory vaccination to enter a business would only lower the number of customers at a time when sales are just starting to heat up.

“Imagine that five people show up and one of them is not vaccinated, what are we going to tell them, that they cannot enter?” He expressed.

The Cacore president clarified that they are not against vaccination and any establishment can apply the measure voluntarily.

After learning about the measure applied in the Cartago bar, the Cámara de Comercio de Costa Rica (Costa Rican Chamber of Commerce) assured that they are still not going to recommend any specific action to their associates.

However, Julio Castilla, president of the organization, reported that they fully agree with the decision made by the Vaccination Commission regarding the mandatory nature of the vaccine.

This Cartago bar owner requires the vaccination card to enter

For the associations like Cacore and the Chamber of Commerce, the vaccination card issued by the Caja Costarricense de Seguro Social (CCSS) at the time of vaccination can easily be falsified and there is currently no mechanism to verify vaccination, other than the vaccination certificate issued by the Ministry of Health, which takes between 8 and 10 days to obtain.

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The measure by the Cartago bar owner and possibly others we have yet to learn about comes after the government insinuated that requiring the vaccination certificate could be a requirement to enter businesses.

Part of the problem is to apply such a measure at this time it that vaccination levels are still low, 67.2% of the population (81.1% of the target population) had at least one dose and 44.4% with second doses (53.6% of the target population) both doses, according to the report of October 5 by the Caja Costarricense de Seguro Social (CCSS).

Cacore sees it necessary to reach at least 85% of the population vaccinated with both doses before the measure should be applied.

The question for now, is it legal for a business owner, ie retail shop, office, restaurant, bar, etc to require vaccination to enter?

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Constitutionalist lawyer Fabián Volio says yer, explaining although there is always a right of the owner, in this case there is legislation that allows mandatory vaccination as a general rule, citing articles of the Constitution, Civil Code, General Law on Vaccination and General Health Law.

Read more: Constitutional Court confirms constitutionality of mandatory vaccination

“As there is legislation that makes the vaccine mandatory, the government could require it, and it is one of the few cases in which I accept a restriction on individual rights. The owner could decide whether or not he cares for a person who has not been vaccinated because it increases the risk of the contagion effect,” he explained.

Another constitutional lawyer, Rubén Hernández, in an interview assured Telenoticias that there is no problem in restricting the entry of the unvaccinated, since it is private premises and its owners have the right to reserve admission.

“That is what is called the right of assembly of access to private places, article 26 of the Political Constitution. The one who organizes the meeting, in this case, the owner of the premises, is the one who establishes the entry rules,” he explained.

Where there would be a problem is in a public establishment or in public services provided by private companies, for example, boarding buses.

“In that case, there would have to be a law that authorizes it, because when it comes to a public service there must be equal treatment for all users,” Hernández added.

Angie Portela, lawyer and legal manager of Apriori, assured that, for now, applying this restrictive measure does not imply any type of sanction.

Of course, entry cannot be prevented for reasons that go against people’s dignity (race, gender, religion, social status, among others).

“The Constitutional Chamber has repeatedly said that establishments have the right to do so, (to reserver entrance) as long as it is not against the dignity of the people and an objective criterion is maintained,” said Portela.

In case someone does not agree with the decision, they can file an appeal with the Constitutional Court or Sala IV as it is commonly known, for protection.

And it was just that, a case of a number of health workers being required by the Caja to be vaccinated and who filed an appeal with the Sala IV, to which the court last week ruled the appeals had no foundation, opening the government’s decision in announcing mandatory vaccination for all government employees.

As to the private sector, the government said employers have the option of applying mandatory vaccination of its employees.

 

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