Because most governments in Latin America are unlikely to impose mandatory vaccination policies, global employers have questions about employer and employee rights when it comes to requiring the COVID-19 vaccination. Can an employer require its employees to be vaccinated? Can an employee deny such a request, and can they be dismissed due to the refusal? HR Policy Global provides insight on those important questions for employers operating in Mexico, Brazil, Argentina, and Costa Rica.
Mexico (Partially contributed by Dante Trevedan)
The country has not issued any public policy or regulation about mandatory COVID-19 vaccination. The President has been indicating that the vaccination should be voluntary. Thus, employers cannot require COVID-19 vaccination of their employees at this point without further clarifications from Mexican authorities. Further, Mexican citizens have a constitutional right to their own bodies and a freedom of choice regarding how to take care of their own health.
Employers are thus advised to be cautious when approaching such cases. Companies might consider providing alternative accommodations, such as teleworking and continuously enforcing the necessary health and COVID-19 protocols to provide a safe work environment.
Brazil (Partially contributed by Jose Carlos Wahle)
The Brazilian government may have the authority to make the vaccination compulsory according to a recent decision by Brazil’s Supreme Court. It is still unclear whether the federal government will retain exclusive control in stipulating vaccination policies and regulations or if states and municipalities may also impose legal measures.
Companies maybe be able to demand their employees be vaccinated depending on the public health policies which are not yet fully developed. Even if the Brazilian government cannot require citizens to take the vaccination, employers may use other strategies, such as requiring non-vaccinated employees remain in remote work scenarios and allowing vaccinated employees to return to office. HR Policy Global will provide more information once the public health policies become definitive.
Argentina
The country has not published any public policy or regulation about mandatory COVID-19 vaccination. Thus, employers cannot require COVID-19 vaccination of their employees at this point unless further mandates announced by authorities.
If an employee refuses to be vaccinated, as we wrote before, it will be very difficult to prove a “just cause” for an employer under Argentina’s current Employee Termination Ban, which is likely to be extended again. Given that vaccination is not mandatory by law, declining it will not be considered as a justified cause of dismissal. Even if it is mandatory in the future, an employee can still claim an exception due to religious beliefs or other factors.
Global employers are advised to take a voluntary approach in Argentina and continue enforcing the necessary health and COVID-19 protocols to provide a safe work environment.
Costa Rica
The country has not issued any public policy or regulation about mandatory COVID-19 vaccination. Thus, employers cannot require COVID-19 vaccination of their employees at this point without further mandates announced by authorities.
Global employers need to follow the workplace mandatory protocols, guidelines and sanitary measures established by the Ministries of Labor and Health.
Outlook: HR Policy Global believes most governments are unlikely to impose a mandatory vaccination policy. As a result, a mandatory requirement from private employers is unlikely to be enforceable. Global employers are advised to review and analyze their international workforce, consult with its worker representatives when applicable, and update their workplace health and safety policy, handbook, or CBA around this topic to ensure a compliance, and most importantly, to promote a company culture which prioritize workers’ health and safety.