Argentina continues its struggle to roll out vaccine delivery to its population. As of June 22, government statistics show only 3.7 million people (approximately 8.2% of the total population) have been fully vaccinated. While a privileged few can afford a plane ticket to Miami to receive the Pfizer vaccine, the rest of Argentina must wait to receive the Sputnik or the Astra Zeneca vaccines.
The gradual rollout of COVID-19 vaccines has started to ease fears and allow people to circulate more freely. Nonetheless, several doubts have arisen among employers about how to manage the return to the workplace. Can an employer require a vaccine? Can they lawfully differentiate between vaccinated and unvaccinated employees? Once vaccines become widely available to all, can or should a vaccine policy change? Read on for answers to these questions.
Can Employers Force Employees to Vaccinate?
An employer can only require an employee vaccinate for those diseases referenced in the National Vaccine Schedule. Because the COVID-19 vaccine is not (yet) included in the schedule, employers cannot force their employees to vaccinate. To reinforce this point, the Ministry of Health and the Ministry of Labor released Joint Resolution No. 4 to confirm that the vaccination remains voluntary.
Can Employers Acquire Vaccines to Offer Employees?
At present, only the national and provincial governments (including the Autonomous City of Buenos Aires) are managing and providing vaccines according to a defined program. Although there have been increasing reports in the media stating that the private sector will be allowed to purchase COVID-19 vaccines directly, this is not yet possible.
Can Employers Change Job Descriptions of an Unvaccinated Employee?
Yes, but only with employee consent. Employers cannot unilaterally change essential employment terms (e.g., responsibilities, place of work,) absent the employee’s consent. Any non-consensual change in the employee’s job responsibilities exposes the employer to a claim of constructive dismissal and demand for immediate termination payments, including statutory severance (which is presently doubled by government decree).
If, however, the changed job description is reasonable in light of public or occupational health and safety, does not affect employee comp & benefits, and the employee is unvaccinated by choice, we think the change would be considered lawful.
Can Employers Impose Unpaid Leave on Unvaccinated Employees?
Unpaid leave cannot be imposed. As a general rule, neither can the employer reduce employee comp & benefits.
What about Unvaccinated Employees Considered “at risk”?
According to the Resolution No. 207/2020, workers over 60 years of age, pregnant women, and certain others deemed “at risk” (e.g., those who suffer from respiratory or cardiac diseases, immune deficiencies, diabetes, and other specific health impairments) are exempt from in-person work and, if unable to perform the tasks remotely, are entitled to paid leave and other benefits.
Can Employers Require Vaccinated Employees to Return to the Workplace?
As of April 8, 2021, Joint Resolution No. 4 allow employers to require vaccinated employees—even “at risk” employees—to return to the workplace 14 days after receiving the first dose of any recognized COVID-19 vaccine. Any employee required to return to the workplace must either provide proof of vaccination or an affidavit explaining why they have been unable to receive the vaccine.
What if an Employee Decides Not to Vaccinate?
Section 4 of Joint Resolution No. 4 shifts responsibility to the unvaccinated employee, requiring the employee to use best efforts to mitigate harm to the employer.
Consistent with this rule, the employer may assign new tasks to the employee, and transition the employee to a WFH arrangement. The employee’s refusal to accept the reassignment and WFH arrangement may entitle the employer to discipline the employee. Although not expressed in the Joint Resolution, we believe employees on paid leave due to their inability to safely interact at the workplace may be lawfully transitioned to unpaid leave. Nonetheless, with no clear statutory guidance, the decision on whether an employee can be denied paid leave in these circumstances, will be left to the courts.
Can Employers Differentiate between Vaccinated and Unvaccinated Employees?
Notwithstanding the Joint Resolution and the public health emergency, employers must continue to treat all similarly situated employees equally. Only “at risk” employees are legally entitled to paid leave until vaccines are made available to them. An employer’s compliance with this paid leave does not constitute unlawful discrimination.
Can Employers Require Future Hires to Vaccinate as a Condition to Employment?
Unless the COVID-19 vaccines are added to the National Vaccine Schedule, hiring cannot be conditioned on vaccination. Any such condition would likely be deemed discriminatory and invasive of the employee’s privacy, exposing the employer to claims for damages.
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If you wish to know more about COVID-19 and the workplace or employment matters in general, please feel free to contact:
Mariel Cannuli, firstname.lastname@example.org
Guillermo Urruti, email@example.com.
This article is based on information in the public domain and is for informational purposes only. It is not intended to provide legal advice or an exhaustive analysis of the issues you mention.