One of the main challenges for employers today is how their workforce can return to the companies’ facilities in a safe manner. For these purposes, companies are requiring their employees to be vaccinated and to provide proof of vaccination against COVID-19. However, is this legal? Can companies require their employers to be vaccinated? Can employers require proof of vaccination status from their employees? The answer to these questions vary across the globe, and below we will take a closer look at the specifics in Latin America.
The answers to these questions are not uniform across Latin America. Each country adopts its own position on mandatory vaccination based on how the COVID-19 virus has evolved in its country and subject to the freedoms and rights afforded to each country’s constitution and regulations.
In Latin America, the outcome on the question of mandatory vaccination is divided. Countries such as Mexico, Argentina, and Colombia prohibit employers from mandating COVID-19 vaccination and, in parallel, prohibit employers from demanding that employees prove their vaccination status. Other countries, such as Brazil and Costa Rica, allow employers to mandate both: vaccination as well as proof of vaccination.
At a more granular level…
In Mexico, employers may ask and collect information of proof of employees vaccination status for informative purposes and health monitoring on companies premises. However, employees are not obligated to provide such information. The disclosure of all information related to the COVID-19 vaccine is voluntary to the employees and its refusal by the employees cannot result in the imposition of disciplinary actions or the termination of the employment agreement by the employer.
In consideration of the voluntary nature of the vaccine, companies cannot require employees to be vaccinated. Requiring this could be considered a discriminatory practice and could lead to: (i) the submission of discrimination claims with the National Council to prevent Discrimination (CONAPRED), and (ii) the imposition of fines for engaging in a discriminatory conduct in the workplace.
In Argentina, as the COVID-19 vaccine is a public health issue, employers are also entitled to request and collect the vaccination status from their employees. However, since this information is related to the employees’ health, it constitutes as sensitive data. Therefore, employees are not mandated to provide it to their employers. The disclosure of any information related to the COVID-19 vaccine is completely discretionary by the employees. To mandate this may lead to claims of data privacy breach.
Regarding the possibility to request employees to be vaccinated, a decree recently enacted empowered employers to require all employees to work in person, except for the ones whose health condition is listed by law. This decree did not make any differentiation between vaccinated and unvaccinated employees. Thus, all employees are obligated to come back to the office regardless their vaccination status. Employers are not allow to determine who can or cannot go to work due to their vaccination status. Doing so may create the risk that employees file discrimination claims.
In Colombia, the law allows employers to request information about the employees’ vaccination status, the type of vaccination they received, and the dates of vaccination. However, considering that this information is qualified as sensitive data under data privacy regulation, employees are not mandated to provide it and employers will require employees’ express consent to collect such information and to process it. Employers that collect and process this information without the employees express consent may face the risks that the Colombian Superintendence of Industry and Commerce imposes significant fines, suspend the activities of the company related to the process of the data, and if the breach is not corrected, closes the operation of the company related to the process of the sensitive data.
Also, given that vaccination is voluntary, employers may not require their employees to be vaccinated. Making it mandatory for the employees to be vaccinated violates fundamental constitutional rights and may allow the employees to file discrimination actions.
Costa Rica has taken a different approach. According to a recent ruling by the Constitutional Court of Costa Rica, employers are empowered to require their employees to be vaccinated against COVID-19. Based on that ruling, employers may require proof of vaccination status from employees.
Refusal to be vaccinated and/or to provide proof of vaccination status may lead to the termination of the employment contracts with just cause, provided that the following internal procedures have been exhausted:
to communicate internal guidelines/policy to employees informing the mandatory nature of the vaccines, the reasons of it, and the consequences of not complying with such policies.
to provide the employees with the opportunity to explain the reason(s) why they have not received the vaccine and why they are breaching the guidelines/policy.
to exhaust all customary steps of progressive disciplinary (e.g. verbal warning, written warning, etc.) before the employment agreements are terminated.
to terminate the employment contract only if the employee’s refusal is not based on a medical condition.
Employees with medical conditions who cannot receive the vaccination will be exempt from this rule and their contracts may not be terminated. Consequently, these employees must be allowed to work remotely or have an option to take the COVID-19 test if, due to the need of the service, they must perform their duties in person and onsite.
Lastly, Brazil has taken a similar approach to Costa Rica, allowing employers to require proof of vaccination status from their employees with the purpose of ensuring the safety and health of the employees.
Considering this obligation, a Brazilian labor court recently ruled that employers may require their employees to be vaccinated. Refusal to be vaccinated or to provide proof of vaccination status could lead to the termination of employment contracts with just cause following exhaustion of the following internal procedure:
provide the employees with information about the mandatory vaccination and about the company's duty to look after workers health collectively.
provide the employees with the opportunity to explain the reason(s) why they have not received the vaccine.
gradually exhaust all progressive discipline steps: written warnings and short work suspension to indicate the seriousness of sanitary rules, according to the circumstances.
terminate the contract for just cause only if the employee’s refusal is not related to a medical reason.
Employees with a medical note recommending non-vaccination may not be terminated with just cause. Instead, these employees should be allowed to perform remote work.
If you have operations in Latin America, it is important that you are aware of the various COVID-19 vaccine regulations across the region. To find out more about vaccine mandates in Latin America, please reach out to Juanita Vera-Trujillo, Dan Waldman, or anyone else on our specialist team.
Juanita Vera-Trujillo is a Law Clerk with Seyfarth Shaw and is a part of Seyfarth’s leading International Employment team. She is admitted to practice in Colombia and will be sitting for the New York bar in February of 2022.