QCOSTARICA – After the world struggled for months to find a vaccine against COVID-19, one of the looming discussions is whether an employer can force their employees to get vaccinated against the SARS-COV-2 virus.
For the moment the answer is no. Not as long as the Ministry of Health does not issue a mandatory guideline.
The position that the Ministry of Health maintains so far is that it will not force the population to be vaccinated, in line with the recommendation provided by the World Health Organization (WHO).
However, at the international level, the discussion has escalated, since in the European Union (EU) it is already questioned whether a recruiter could request the vaccine or the vaccination card as a requirement to aspire to a job.
This could be a requirement to aspire to a job in the medium term or in a post-pandemic context.
In Costa Rica, the vaccination campaign will be gradual during 2021, but this scenario, the requirement of a vaccine, could become a reality, when the vaccines are readily available over the counter.
For now, an employer cannot oblige their workers to be vaccinated against COVID-19, as long as the Ministry of Health does not publish a guideline stating that the vaccine is mandatory, this from Paola Gutiérrez, a specialist in labor law at Caoba Legal, and Marco Durante, managing partner of BDS Asesores, talking to El Financiero, Costa Rica’s business journal.
“It seems to me that in general terms the employer within its management power could not order the workers to be vaccinated because it would be an interference in the personal sphere of the worker,” said Durante.
The specialists cite Article 150 of the Ley General de Salud (N° 5.395) – General Health Law, a rule that indicates that “vaccination and revaccination against communicable diseases determined by the Ministry are mandatory.”
Under this criterion, a health worker could desist from applying the vaccine. The Caja Costarricense del Seguro Social (CCSS) – Costa Rican Social Security Fund – has already addressed the issue, and applied a survey where it asked 11% of the health personnel if they would be willing to vaccinate.
83% said they would and 17% said they want to receive additional information before giving an opinion, confirmed Román Macaya, executive president of the Caja during a virtual information session on Wednesday, December 16.
Health workers are precisely among the priority groups to be vaccinated, both those of the Caja and private medical centers.
Demanding the vaccine should be a power of employers and occupational health committees (which are found in work centers) to prevent the spread of communicable diseases among workers, considers Daniel Valverde, a specialist in Labor Law at the law firm Ecija.
In this case, the Labor Code refers to the powers that the occupational health committee has in articles 214 and 284.
The position held by the Ministry of Health is not set in stone and could change. Months ago, Health Minister, Daniel Salas, affirmed that the use of the mask was not mandatory, as it gave a sense of false security but months later he changed his position when he saw the rate of infections from COVID rise -19.
Currently wearing masks is mandatory. Should the Ministry of Health change its mind, employers could demand the use of the vaccine.
However, the current criterion by the Ministry of Health could put certain employers between a rock and a hard place, because the employer has an obligation to maintain the health and safety of the community. This means that it must not only ensure a safe environment for its workers but also for those who visit this workplace, said Marco Durante.
Mandatory vaccination is an issue that has been submitted to the Sala Constitucional (Constitutional Court), commonly known as Sala IV, an institution that has indicated that the mandatory nature of vaccines to prevent diseases is legally valid, explained Paola Gutiérrez.
One of the most recent is ruling 14,677, a ruling that was issued in 2019, in the case of a minor appealing to the Court against the application of the vaccine against the Human Papilloma Virus.
The appeal was declared without place, because in light of the best interests of the minor, the mandatory nature of the vaccines was justified, including those that are in the national basic public scheme.
New requirement to apply for a job?
Once the vaccines are available to the entire population, proving that you have been vaccinated against covid-19 could become a requirement for access to a job.
“In this first stage you have to wait and be patient and you should not require the certificate (vaccination card). But then if one can go to any pharmacy to get vaccinated and in the job that I am going to perform it is considered that it is a risk position, it could be required, as certain years of experience are required, a degree and that they are vaccinated against covid-19 because it serves the general public,” explained the specialist in labor law Daniel Valverde.
Just as the “hoja de delincuencia” (criminal report) is requested in many cases to obtain a job, the vaccination card could also be requested in the medium term or in a post-pandemic context, Gutiérrez considers.
“I think it is valid that you can request the vaccination card but this will be the subject of debate, as long as it is not a mandatory vaccine,” she added.
If discriminatory treatment is alleged, the answer could be in the hands of Sala II (the highest court in labor matters).
For its part, the European Economic and Social Committee (EESC) recently stated that employers may avoid hiring a worker who wishes not to be vaccinated against COVID-19, according to a press release.
The president of the European Economic and Social Committee (EESC), Chista Schweng, affirms that it is “obviously possible” that companies avoid establishing labor relations with people who avoid applying the vaccine.
Costa Rica vaccination
Costa Rica began its vaccination campaign on December 24, 2020, after receiving the first batch of 9,750 doses from Pfizer/BioNTech, the day before.
Another batch of 11,700 doses was received on December 30. The third shipment of 33,150 doses was received on January 5, with similar weekly shipments expected during this month and to be increased in February.
On Friday, January 8, the CCSS reported that 9,751 people had already received the first dose of the covid-19 vaccine.
The country has three agreements (with Pfizer BioNTech, AstraZeneca and Covax) to access six million doses and thus vaccinate just over three million people over 18 years of age.