Tribune by Daniel Valverde, ECIJA Costa Rica partner at Nearshore Americas
Costa Rica’s Ministry of Health surprised the country when, at the end of September 2021, it announced that the National Commission of Vaccination, a technical and independent body within the ministry, had approved the enforcement of mandatory Covid-19 vaccination for all public servants, and authorized private employers to request their employees have it, if they so desired.
On October 11th, 2021, the government issued the Executive Decree N° 43249-S, to bring this ruling into effect. To add to the vaccine mandate, a QR code was required for citizens wanting to enter public spaces, such as concerts, hotels or restaurants.
Costa Rica has an ample history of using mandatory vaccination to attack transmissible diseases. Article 150 of the General Health Law indicates that vaccination is mandatory for transmissible diseases when indicated as such by the Ministry of Health. Article 152 mandates citizens to show their vaccination certificates, if required by authorities. Article 155 prohibits any citizen with transmissible disease to enter workplaces.
In Costa Rica, there is no objection clause or exception to the mandatory vaccination
The Labor Code also mandates employees to follow any order from the authorities that protects the safety and health of the employees and the workplace, as established in Article 71, Subsection H of the Labor Code. If employees repeatedly ignore these regulations, including an applicable vaccine mandate, they could be dismissed with cause, in accordance with Article 81 of the Labor Code.
In Costa Rica, there is no objection clause or exception to the mandatory vaccination. The only accepted exception is a medical one: the employee would need to demonstrate that they are allergic to a component of the vaccine, or that there is another medical reason against vaccination, in order to be exempt. There are no religious, moral or other types of exemptions.
This decision dominated the public debate in the country. The government, most politicians and companies accepted the mandate. However, there has been resistance from certain public and private employees. A recent ruling of the Constitutional Chamber of the Supreme Court has reinforced the possibility of the State to dictate mandatory vaccinations, and has denied the possibility for public employees, or citizens in general from denying the vaccination.
We are now in a phase where public employees have a term limit to get vaccinated, and private employers are starting to implement mandatory vaccinations in their workplaces. But is mandatory vaccination the norm worldwide? How does we fare in that regard with the rest of the world?
Indonesia has established a mandatory vaccination for all its citizens, stating that anyone that does not get vaccinated could be denied social assistance, government services or be made to pay for such services
There are several countries besides Costa Rica that have implemented mandatory vaccine mandates to employees, although there may be differences in their approach.
For instance, Indonesia has established a mandatory vaccination for all its citizens, stating that anyone that does not get vaccinated could be denied social assistance, government services or be made to pay for such services. Fiji established that public and private employees must be vaccinated, and those that do not, could lose their jobs.
In Europe, Italy stands as one of the few countries that mandates vaccination. Workers unable to show proof of vaccination, a negative test or recent recovery from infection would be suspended without pay and face a fine if they try to keep working.
Other countries, such as Germany and Spain, have maintained the vaccine as a voluntary issue. In Spain for example, the law permits citizens to refuse medical procedures, including being vaccinated against Covid-19. This includes employees from public and private sectors. If an employer requests that employees get vaccinated it can be deemed discriminatory.
The United States has mandated vaccination for all federal workers and demanded that large companies require their employees to get fully vaccinated or submit to weekly testing. The vaccine mandate has been challenged in US courts.
In Latin America, vaccine mandates are very rare and Costa Rica appears to be the exception and not the norm. Argentina has an emphasis on voluntary vaccination, and there are no legal authorizations employers could use to request vaccination to employers. Vaccination, however, is required for employees who would like to return physically to their workplaces.
In Spain, the law permits citizens to refuse medical procedures, including being vaccinated against Covid-19
Chile also has voluntary vaccination. However, there is a possibility for employers to mandate its employees to vaccinate, if they consider that it is an appropriate measure to maintain the security of the workplace and protect employees’ lives. This possibility must be exercised with caution, as no employment ruling has yet backed it up.
Guatemala has maintained the vaccine as a voluntary issue, requesting its citizens to vaccinate, but they are no legal consequences of not being vaccinated. The same occurs in Panama. The law could require mandatory vaccination, but their Ministry of Health has not made that decision. As such, there is no strong legal ground for Guatemalan or Panamanian employers to demand employees be vaccinated.
As such, Costa Rica could be considered to have the toughest vaccine mandate in The Americas. We will see if this helps us tackle pandemic more efficiently and return to normality more quickly, or if countries with voluntary vaccination will fare better. Only time will tell.
