Just when it looked like the COVID-19 virus had receded in Argentina, case rates have increased slightly and a new variant has brought the virus back to the forefront of public health policy discussion. Employers are once again asking questions related to COVID-19 and the workplace. Earlier this year, one of my colleagues published an article on the subject, which can be found here: https://lnkd.in/dx2YDcw. That article focused on the ability of employers to compel a return to the workplace after the government removed shelter-in-place orders, despite having less than half of the population fully vaccinated. This article updates the most pressing issues and responses.
With little statutory, regulatory, or judicial guidance but with vaccines widely available at least in the country´s densest population centers, Argentine employers are now struggling with how to protect the workforce and to comply with national and local pronouncements, while preserving employee rights involving personal data (e.g., vaccine status) and freedom of choice (whether to vaccinate). This update answers various questions: Can employers request an employee to disclose vaccination status? Can employers require proof of vaccination as a condition to return to the workplace? What happens to an employee who refuses to vaccinate? Must employers require employees to wear masks, regardless of vaccination status? Finally, how should employers deal with vaccinated employees who refuse to share space with unvaccinated employees?
Read on for answers to these questions.
Can Employers Request an Employee to Disclose Vaccination Status?
Yes. Joint Resolution 4/2021 implicitly authorizes employers to request information regarding employees’ vaccination status. This resolution requires employees to provide proof of vaccination or to submit a sworn declaration stating the reasons why they are unable to access a vaccine. A request for disclosure should allow an employee to choose not to disclose vaccine status, although this can default to an assumption of “unvaccinated.”
Note, however, the employer’s right to survey its workforce vaccination status is not a license to discriminate between vaccinated and unvaccinated workers.
Can Employers Condition an Employee’s Return to the Workplace on Proof of Vaccination?
No. In Argentina, the COVID-19 vaccination is not compulsory. An employer cannot exceed federal law to mandate the vaccine as a condition of employment or re-entry into the workplace. While certain media voices have urged companies to deny unvaccinated employees access to the workplace, the government has been quick to repudiate the idea and to affirm its intent to pursue the vaccine process on a voluntary basis.
What Happens to an Employee Who Refuses to Vaccinate?
Essentially, nothing. Consistent with the preceding response, because the law does not require the vaccine, an unvaccinated employee may not be treated disparately based on the choice not to vaccinate. The unvaccinated employee cannot be denied return, shunned, or segregated from the rest of the workforce. An employer may require random testing and masking to protect the health and safety of all employees but, if so, those requirements should be applied uniformly, regardless of vaccination status.
Can Employers Require Employees to Mask?
Yes. In Argentina, the nationwide mask mandate requires everyone (regardless of vaccination status) to wear “face coverings” in all shared spaces. Thus, wearing masks is not optional, and all employers should require employees to wear masks, regardless of vaccination status.
How Should an Employer Deal with Vaccinated Employees Who Refuse to Share Space with Unvaccinated Employees?
Unfortunately, there is no real legal guidance to resolve this problem and no single approach works for every workplace. First, an employer should consider the local (provincial/municipal) rules, in addition to national ones. Argentina does not restrict unvaccinated persons from moving about or entering enclosed spaces. A nationwide mask mandate and health protocols apply to all persons, regardless of vaccination status.
Employers must weigh these considerations against the legitimate concern of the vaccinated employees and the employer’s duty to protect the health and safety of employees. Referring again to Joint Resolution No. 4, this pronouncement shifts responsibility to the unvaccinated employee to make a reasonable effort to mitigate any potential harm to the other employees.
In the absence of legal guidance, here are a few suggestions from an HR perspective:
- Identify the size of the problem: Is the issue general or specific to a particular area or employee? Introducing small changes to a specific area (such as allowing more space between desks or permitting an employee to change offices) might solve the problem. If the issue applies across the board, a more generalized response (e.g., aleatory testing) may be appropriate.
- Acknowledge each employee’s concerns. Try to reason with employees who hold strong views (either way) about the COVID-19 vaccination. In practical terms, employers cannot mandate a COVID-19 vaccination but should require masking, regardless of employees’ vaccination status.
- Avoid stigmatization. Employers should strive to make employees feel comfortable and to avoid expressing a particular view regarding vaccination. An employer’s decision to request vaccination status and to respond to unvaccinated employees must be supported by scientific assessments and not be punitive.
