Healthcare cure concept with a hand in blue medical gloves holding Coronavirus, Covid 19 virus, vaccine vial
EXECUTIVE DECREE N°43249-S: ESTABLISHMENT OF MANDATORY COVID-19 VACCINATION

The enactment of Executive Decree N°43249-S, which establishes the mandatory application of the vaccine against COVID-19, has undoubtedly divided the opinion of the population in two: those in favor and those against mandatory vaccination and its influence in the private sphere of people, being the labor sphere one of the most critical points.

In general, those against have stated that these provisions represent an abuse of their fundamental rights, such as the right to freedom and the right to self-determination; however, in two pronouncements of the Constitutional Chamber, as in those on which the Executive Decree under analysis has been based, the situation has been clarified around the apparent opposition of the recognition of the fundamental rights involved in the controversy, since the Chamber is clear in pointing out that the rights to life and health, as well as the obligation that the right to life and health must be protected, are fundamental rights, as well as the obligation of the State to protect public health, are inalienable rights and should not compete with individual rights and interests, precisely because of the general interest they represent, without their primacy being questioned, especially considering that this regulation is enacted in the midst of the development of the health emergency caused by the COVID-19 pandemic. While it is true that Costa Rica is fortunate to have a robust health and social security system in comparison with other systems in the region and, in general, its population has been characterized by its willingness to adapt to national health policies it is not surprising that the lack of knowledge of the new disease and the speed with which the pharmaceutical companies developed the vaccines, together with the morbid and conspiracy theories that have been generated around the emergence of this disease, generates a generalized panic in the population and a reluctance to vaccinate.

(…) That is to say, as this Tribunal already pointed out in vote 2942-92: “…no individual right or freedom is so unlimited that it is not restricted by the need to proceed to the defense of opposing individual interests, or with greater motive of the collectivity…”. Resolution Nº 11648 – 2000

However, in COLBS ESTUDIO LEGAL, as part of the added value we provide to our clients, we have been concerned about disseminating accurate and timely information, to reassure employers who, at this moment, are questioning about what comes after the enactment of this Decree in their work environment and recruitment processes.

The Considering XVII of the Decree establishes that: “It will be the responsibility of the employer to take the corresponding measures in accordance with the country’s legislation and institutional regulations, in the case of workers who do not want to be vaccinated against COVID-19.” This means that, in accordance with articles 69 and 282 of the Labor Code, it is the employer’s duty to ensure employees healthy conditions in their work environment, and therefore, the employer is fully empowered to generate policies, procedures and sanctions for workers who do not want to be vaccinated against COVID-19, procedures and sanctions against workers who openly refuse to comply with the safety measures established in the workplace and that regulate occupational health, as well as any other that the government authorities establish, as is the case of the mandatory compliance of the entire Costa Rican population to apply the vaccine against COVID-19. Taking into account that labor relations are governed by a series of principles, such as communication, good faith and cooperation, among others; in the case of mandatory vaccination, it is a duty and obligation of both employers and employees to comply with the provisions issued by the Ministry of Health and others of the Executive Branch in all matters relating to measures that seek to curb the spread of the deadly virus.

Regarding the possible disciplinary measures that employers could apply in this regard, it is necessary to refer to the provisions of Article 71, paragraph h) “Strictly observe the preventive measures agreed upon by the competent authorities and those indicated by the employers, for their personal safety and protection or that of their co-workers, or of the places where they work”; as well as other related articles, such as Article 81, paragraphs f), h) and l) and Article 285, all of the Labor Code.

The above mentioned articles grant the employer the legal power to warn the worker in writing to comply with the obligation imposed by Decree No. 43249-S, to comply with the vaccination scheme against COVID-19; being that, in case of unjustified refusal, the employer would be empowered, in accordance with Article 81° to apply the dismissal without employer’s liability of the worker or workers who refuse to comply with the provisions of this regulation: “(h) When the worker manifestly and repeatedly refuses to adopt the preventive measures or to follow the procedures indicated to avoid accidents or illnesses; (…)”; not without omitting that, the employer could be exposed to a process of infringement of the labor regulations, by the Ministry of Labor and Social Security.

Likewise, in light of these aforementioned articles and since we are facing an obligation that the legal system imposes on both employers and workers, companies can and should, be protected to modify their internal recruitment policies, anticipating compliance with these provisions from the beginning of the employment relationship, including, and without the employers being exposed to complaints or claims from potential candidates for apparent discriminatory practices.

On the other hand, on the occasion of the constitutional protection of labor rights, the provisions and pronouncements issued by the International Labor Organization (ILO) on mandatory vaccination cannot be overlooked: “An employer’s decision on compulsory vaccination should be applied in a non-discriminatory manner, in accordance with the provisions of Convention No. 111, and with due regard to specific circumstances which may require exceptions and adaptations.”

Furthermore, with respect to economic recovery policies, the ILO has recognized that mandatory vaccination can be a great contribution to the recovery of the economy and the return to the “normality” that we used to know before the pandemic.

“The pace and extent of recovery in 2021 will be determined by a broad set of political, economic and health factors. While effective control of the virus will be essential, in particular through the rapid and large-scale implementation of vaccination campaigns, this will need to be accompanied by appropriate economic and social policies to better rebuild the world of work.”
In conclusion: This regulation, which comes into force as of October 15, 2021, has ample regulatory support for the implementation of mandatory vaccination and also for employers in support of these provisions to emanate their own regulations to control that their employees are in compliance with the vaccination and thus ensure that their workplace is a safe place to work, ensuring the protection of the health of their employees.

Sources:
Executive Decree N°43249-S of October 11, 2021.
Law N°2, Labor Code.
Votes N°19433-2020 and N°11648-2000 of the Constitutional Chamber of the Supreme Court of Justice.
I.L.O. (January 25, 2021). “ILO Observatory: COVID 19 and the world of work. Seventh edition Updated estimates and analysis” (p. 22, para.2).
I.T.O. International Labor Standards Department (April 19, 2021) “ILO standards and COVID-19 (coronavirus). Frequently asked questions.” Version 3.0. (P. 34)

Marcela Bustamante, Asociada COLBS Legal Studio

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