Mandatory Covid-19 vaccination? An employment perspective

Enrique Álvarez

Lloreda Camacho & Co, Bogota

ealvarez@lloredacamacho.com

Rafael Abuchaibe

Lloreda Camacho & Co, Bogota

rabuchaibe@lloredacamacho.com

The vaccination process against Covid-19 raises questions that have been debated worldwide. Surely, it will also impact the employment regulations in Colombia determining whether employers have the legal right to make vaccination mandatory for their employees.

Given the possible impact on third parties, the main discussion has been determining the essential nature of vaccination against Covid-19 for the population or individuals of a specific industry (eg, physicians, nurses and all personnel that have direct contact with individuals infected with Covid-19). Although employers may insist that their employees are vaccinated, we consider it is highly unlikely that the Colombian Government will make vaccination mandatory. Our analysis will be limited to an employment perspective. Regarding children and teenagers, the issue is clear: the Constitutional Court has ruled that all actions carried out by public authorities in which minors are involved must be guided by the principle of the best interests of children and teenagers. In this sense, the Colombian Government has the authority to order mandatory vaccination for children and teenagers, even if their parents refuse to do so.

Law No 2064 of 2020, by means of which the strategy for the immunisation of the Colombian population against Covid-19 was declared, did not make vaccination mandatory in Colombia. Hence, employers cannot consider mandatory what the Constitution and the law have provided as voluntary. Additionally, there is no legal precedent from the Constitutional Court for mandating vaccination for the population as said mandate may breach an individual’s fundamental right to the free development of personality.

Although we are in a premature stage of the vaccination process in Colombia, our society will potentially have to face the individual’s decision to refuse vaccination on the basis of conscientious objection, allergy, religious beliefs and side effects of the vaccine, among others. Considering the aforementioned, as vaccination is voluntary, employers are not entitled to mandate vaccination for its employees. Furthermore, employers may not require any proof of vaccination.

To mitigate the social and economic impact caused by Covid-19, the Health Ministry issued a resolution with a practical guideline to reduce exposure and mitigate Covid-19’s infection in the workplace. Commonly known as biosafety protocols, and with the assistance of the labour risk entity, all employers had to make amendments to their activities to guarantee social distancing and adequate hygiene processes in the workplace. Essentially, employers are legally obliged to provide personal protection elements to mitigate Covid-19 contagion and, if applicable, adopt telecommuting and home office policies. These guidelines were issued almost a year ago and have been updated permanently, and the Colombian Government has never included or made any slight reference to mandatory vaccination.

In this sense, in the near future, employers are going to face a dilemma: are they entitled to terminate employment agreements with cause for personnel who refuse vaccination? After conducting complete legal and jurisprudential analysis, and considering that vaccination is voluntary, we consider that employers are not entitled to terminate employment agreements with cause nor impose any disciplinary sanction on their employees. Moreover employers have to strengthen their occupational health and safety plans to ensure compliance with biosafety protocols and avoid, as much as possible, Covid-19 contagion, using alternatives such as providing personal protection elements; home office alternatives, where applicable; organisation of workplaces to guarantee social distancing; and permanent disinfection of workplaces.