Navigating the global liability defence agenda

Can an employer require the worker to be vaccinated?

The COVID-19 pandemic has undoubtedly demanded the entire world to take certain measures to adapt to the situation and Chile was no exception.

One such measure was that for a long time we were unable to attend our workplaces, providing services using the medium of teleworking or remote working, from our homes. As a consequence, in March 2020, a special law was issued to regulate the matter.

Subsequently, and once the vaccination process began to advance, face-to-face work was resumed and the question arose: Can an employer require the worker to be vaccinated to return to work in person?

In Chile, the issue has not been settled and labor authorities have not had a clear answer. Below, we analyse what the Chilean Labor Authority has pointed out:

  1. The employer could not prevent the entry of the dependents to their workplace invoking the lack of vaccination against COVID-19, without incurring in a breach of your obligation to provide the agreed work, unless in case of force majeure.
    - The Labor Authority indicates that since vaccination against Covid-19 is a voluntary act for workers, as reported on its website by the Ministry of Health[1], the employer could not prevent dependents from entering their workplace by invoking the lack of vaccination, without breaching its contractual obligation to provide the agreed work.[2]
  2. The labor authority does not have jurisdiction to pronounce on whether employers have the right to require workers to provide essential services and attention to the public, among others, to vaccinate against COVID-19.

- Indicates to the Labor Authority that this entails a collision of fundamental rights. On the one hand, respect for the fundamental rights of workers must be considered by the employer, especially those concerning private life, honor, respect for life and physical and mental integrity; on the other, the employer's obligation to adopt all necessary measures to effectively protect the life and health of workers must be considered. Likewise, the employer has the right to direct and organise the company. Therefore, there is a collision of rights that is not easily resolved and must be analysed in case.

This is different from what happens, for example, in Costa Rica, where a decree took effect in October 2020 that allows the dismissal of any public sector worker who refuses to be vaccinated against Covid-19. Likewise, in the case of private sector workers, they, if they wish, could make it enforceable, with the sanction of dismissing the worker, without employer responsibility, provided that it is found in the company's internal regulations.

The same occurs in the United States, where most public employees are required to be vaccinated, as well as workers in companies with more than 100 employees, who are either vaccinated or must show a negative test.

But what about Chile?

The Health Authority chose not to make vaccination against the coronavirus mandatory. In effect, Chilean legal regulations indicate that it is the President of the Republic who, at the proposal of the Health Authority, can declare mandatory the vaccination of the population against certain communicable diseases, including, for example, COVID 19. For now, this has not happened.

Unlike with other countries, in Chile the issue has not been settled and the labor authorities have not had a clear answer. Consequently, it will be the judicial authorities who will determine what is permitted, resolving disputes on a case by case basis.

We understand that it could be reasonable for the employer to demand vaccination as a requirement both for hiring and for their maintenance in the company, provided that there are no other sanitary measures that guarantee the life and health of workers and their colleagues, without prejudice of course, do what the judicial authority ultimately decides.


Read other items in the Commercial Brief - May 2022