Can an employer require compulsory COVID-19 vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
At the time of this advice, Peru has not issued any regulation regarding a mandatory COVID-19 vaccination. On the contrary, pursuant to Law 31091, the government has established and has assured the Peruvian population free and voluntary access to “any preventive and healing treatment in connection to the disease caused by coronavirus SARS-CoV-2”.
Notwithstanding the above, based on health and safety provisions at the workplace, taking into consideration the health of other coworkers and, in general, public health, the employer may require compulsory vaccination. This employer’s decision may be reinforced or supported if they have implemented an internal policy in such regard.
As we currently do not have compulsory vaccination regulations, we consider that some exceptions may be applicable (i.e., medical conditions).
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
As previously mentioned, Peru has not issued any regulation regarding a mandatory COVID-19 vaccination. However, in case the employer has implemented a reasonable and lawful internal policy that compels employees to be vaccinated, we believe that the employee may not validly refuse, unless they allege and prove a legitimate exception (i.e., medical conditions, medical treatment, allergy, etc.).
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?
From a conservative standpoint, we consider that since the vaccination is not mandatory by law, refusing to be vaccinated may not be considered a justified cause for dismissal. However, the implementation of a reasonable and lawful internal policy that compels employees to be vaccinated, based on health and safety dispositions in the workplace, may provide solid grounds for the employers to require the employees to be vaccinated and, in the case of refusal (without a valid cause), to initiate a disciplinary procedure.
Notwithstanding the abovementioned, according to our local regulations, the unjustified refusal of an employee to observe or comply with “prophylactic measures or directives or orders issued by a physician” constitute a justified cause for dismissal. Thus, the unjustified refusal of an employee to be vaccinated may fit in the referred cause. Without a doubt, an assessment regarding each case will be necessary to evaluate each situation and its specifics. In addition, we believe that these potential scenarios will lead to several disputes and debates.
Cristina Oviedo, Payet, Rey, Cauvi, Pérez Abogados