Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
Unless there is a law providing for a mandatory COVID-19 vaccination, employers cannot compulsorily require their employees to get vaccinated. So far, Argentina has not issued any regulation providing for a mandatory COVID-19 vaccination campaign.
Can employees refuse to be vaccinated? How do employers need to balance its obligation to provide a safe work environment with an employee’s rights?
Yes, employees can refuse to be vaccinated.
Employers must keep enforcing the necessary health and COVID-19 protocols to provide a safe work environment, regardless of any vaccination campaign.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
Currently and until January 25, 2021 dismissals without just cause, for lack of work or a decrease in work, or due to force majeure are prohibited by law in Argentina, thus, employees can only be dismissed with justified cause. Said prohibition has been extended before, therefore it is quite likely that the government will extend it again, for as long as the pandemic crisis affects the country.
Employers can still dismiss employees with just cause, i.e., in the event of the employee’s failure to fulfill his/her obligations which, by their gravity, do not consent to the continuation of the labor relationship. Labor laws do not list specific breaches that justify dismissal; the scenarios should be analyzed on a case-by-case basis and the employer has the burden of proving the cause of dismissal. Given that vaccination is not mandatory by law, refusing to be vaccinated cannot be considered as a justified cause of dismissal. Even if it were mandatory, if an employee refuses to be vaccinated due to religious beliefs or because the employee has a disability which would make it unsafe, it would not constitute a just cause of dismissal. Labor courts may even consider it as a discriminatory act against the employee, which would enable him/her to be reinstated or compensated.
Laura LaFuente, Alfaro-Abogados