*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
Unless there is an order issued by the corresponding Health Authorities, for instance the Ministry of Health or the National Health Committee, establishing the obligation for all citizens to get vaccinated or the ability for employers to assist with a similar campaign among their employees, employers will not be able to require compulsory COVID-19 vaccination.
So far, Mexico has not issued any regulation providing for a mandatory COVID-19 vaccination campaign, and to the contrary, the President has been very vocal in the sense that the vaccination is voluntary and thus no one can be forced to get vaccinated.
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?
No, employees cannot be dismissed for refusal to comply with the employer´s vaccination policy as any such policy would contradict their right on their own body and freedom of choice regarding how to take care of their own health.
In Mexico, employment terminations with cause shall fit one of the grounds established within the Federal Labor Law for such purpose. In the case of the COVID-19 vaccine, an argument could be made in the sense that the employee is refusing to take the safety measures to avoid endangering the safety of the personnel at the workplace but given the nature of the specific situation, it seems unlikely that the Labor Courts would consider this scenario as sufficient cause for a justified employment separation; furthermore, providing with the proper objective pieces of evidence to prove the alleged termination causes could be quite challenging. Certainly, an assessment should be made on a case by case basis taking into account the specifics of the incident.
What benefits or accommodations does an employer have to make for vaccinated employees?
Employers may, if they choose to, offer employees a bonus or incentives to employees who receive the vaccine, but there is no obligation whatsoever to do so.
Other than that, there is no legal requirement to grant any benefit or make accommodations for employees who receive the vaccine.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
No. Employees shall perform their activities at the workplace irrespective of having coworkers who have not received the vaccine, as long as the health authorities allow such in-person work. In any case, the employer must observe the corresponding health safety protocols, irrespective of having any or many employees vaccinated.
If an employee refuses to work or disobey the employer or its representatives, provided that it relates to the contracted work, such action could be regarded as justified grounds for termination, without liability for the employer, according to the Federal Labor Law.
In your country, are employers required to provide paid leave for employees to get vaccinated?
The Federal Labor Law does not require or establish paid leave for this type of scenarios; however, it may be agreed between the parties, or else, the employee could inform the employer about any reaction that may impede him to work in which case the employee could obtain a medical disability from the Mexican Social Security Institute.
Contributor
Santamarina y Steta
Franciso Udave
fudave@s-s.mx