*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.*
Has vaccination been made mandatory in your jurisdiction?
No. As of today, no legislation mandating vaccinations has been imposed. However, as of October 21, 2021 foreigners having resided in any one of 46 listed countries/territories are allowed to enter Thailand without being required to undergo a mandatory quarantine only if they are fully vaccinated at least 14 days prior to the date of entry.
Can an employer require employees to get the COVID vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
CMHM: No. Although, COVID-19 is currently regarded as a dangerous communicable disease under the Communicable Diseases Act B.E. 2558 (A.D. 2015) – the “CDA”. No mandate on vaccinations has yet been imposed. However, a communicable disease control officer is empowered under the CDA to carry out or issue a written order instructing any person at risk of being infected with a disease (a ‘high-risk person’) to receive immunization in order to prevent the transmission of a dangerous communicable disease or epidemic.
Can employers require the wearing of masks in the workplace?
Yes. In many areas in Thailand, such as Bangkok, communicable disease control officers (among them, its Governor) have exercised their power under the CDA to prohibit any act which may cause unhygienic conditions and may result in the transmission of COVID-19. Such prohibited activity includes being unmasked while being in public places or participating in activities with close contact. Therefore, an employer’s order requiring employees to wear masks in a workplace in such areas is lawful and just, and any non-compliance of such order without reasonable excuse could be a legitimate ground for termination of employment without severance pay or requirement to give advance notice.
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?
Yes. If an employee has health issues or other reasons for such refusal to comply with the employer’s order requiring the employee to get vaccinated, an employee has the right to refuse vaccination. The employee needs to inform his/her employer of such issues or reasons which could render the order unjust. For service or hospitality businesses, which can expose their employees to the risk of being infected with the disease, an employer may request that a communicable disease control officer issue a written order instructing any high-risk person to get vaccinated.
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?
An employer’s order requiring an employee who is a high-risk person under the CDA to get the COVID-19 vaccination can be regarded as a lawful order. Nevertheless, if the order requires the employee to get the vaccination at his/her expense, where such vaccination is not made available, or if the employee is concerned that the vaccination would pose a health risk to him/her, the order could be regarded as unjust. If the employer’s vaccination policy to ensure workplace safety is implemented without any cost to the employee and the employee’s refusal is based solely on his/her constitutional right to liberty, this could be regarded as a just cause or a legitimate ground for employment termination. However, in such a case, the employer will be required to pay severance and to give advance notice of such termination (or make payment in lieu thereof).
What benefits or accommodations do employers have to make for vaccinated employees?
If any vaccinated employee becomes unwell after the vaccination, he/she shall be entitled to take sick leave. The total sick leave days taken by an employee in any given calendar may not exceed 30 working days. As of now, no legislation has been imposed to require employers to provide any benefits for vaccinated employees beyond such leave entitlement.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
No. However, employees may demand that the employer enforces strict compliance with measures to ensure hygienic conditions in the workplace. Under the Labour Protection Act B.E. 2541 (the “LPA”), an employee being absent from duty without justifiable reason for three consecutive working days could be a ground for employment termination without the requirement of making a severance payment or giving advance notice. However, the employer’s failure to maintain hygienic conditions could be regarded as a justifiable reason for the employee to stay away from the workplace.
In your country, are employers required to provide paid leave for employees to get vaccinated?
No. Employers are not legally required to grant a paid leave specifically for employees to get vaccinated. However, under the LPA, an employee is entitled to take leave to attend to his/her ‘necessary personal business’; provided the total ‘necessary personal business’ leave days taken by the employee in any given calendar year do not exceed 3 working days. Getting a vaccination could be regarded as ‘necessary personal business’.
Contributor
Chandler MHM Limited
Waree Shinsirikul
waree.s@mhm-global.com