Requirement of the vaccination scheme for workers in the productive sectors open to the public.

On January 12, 2022, the Ministry of Labor of Colombia, through Circular No. 003, established some guidelines regarding the requirement of the Covid-19 vaccination scheme for workers in the productive sectors open to the public.

Below, we present the most important aspects of the aforementioned document.

¿Who does it apply to?

Considering that Decree 1615 of 2021, issued by the National Government, established the requirement of the vaccination card with the complete scheme as an entry requirement for certain places and events, the Ministry of Labor called on that workers who perform such work and events must also comply with this requirement.

In this sense, the requirement of the Covid-19 vaccination card or digital vaccination certificate will apply for the workers performing at:

• public or private face-to-face events involving massive attendance of people;

• bars, gastrobars, restaurants, cinemas, discotheques, dance halls, concerts, casinos, bingos and leisure activities, as well as sports venues, amusement and theme parks, museums and fairs; and

• general, in any activity involving attention to the public.

Regarding this last case, it is worth mentioning that it constitutes an addition with respect to the assumptions established in Decree 1615 of 2021 by the National Government.

As a result, we consider that there is an overreach in the functions of this ministerial portfolio because with the requirement of the complete vaccination scheme for workers who work in any activity that involves attention to the public, the cases in which such requirement would be applicable would be widely increased, without there being a regulatory support that establishes it, as there is for the other cases.

¿What happens if the worker refuses to be vaccinated or does not have the complete vaccination scheme?

In the same circular, the Ministry of Labor states that employers must deploy actions, mechanisms and establish biosecurity protocols for the protection of the life and health of their workers, in harmony with the provisions of Circular No. 047 of 2021.

In this sense, for workers who still do not have the complete vaccination scheme, the employer must provide the spaces to encourage their attendance to the vaccination posts, even within the working day, granting the required permits for them.

Regarding workers who in the exercise of their autonomy have decided not to be vaccinated, we consider that the guideline is not so clear for the following reasons:

• Paragraph of Article 5 of Resolution 777 of 2021, by which the biosecurity protocols for the reactivation of the different economic sectors were adopted, established that "in the organization and strategies for the return to activities in a face-to-face manner, persons who in the exercise of their autonomy decided not to be vaccinated will be included, regardless of their age or comorbidity condition". 

• In line with the above, the Ministry of Labor in Circular No. 047 of 2021 stated that "in the event of refusal to take the vaccine, it is not viable to demand it as a requirement for entry or permanence in employment, since this would represent a clear violation of fundamental rights of workers".

In view of the contradiction between what was said before by this ministerial portfolio and the provisions of its new circular, the following possible scenarios could be considered in the event of a worker who performs in the aforementioned activities refuse to be vaccinated:

1. Considering that numeral 12 of article 62 of the Labor Code establishes as just cause for dismissal "the systematic reluctance of the worker to accept the preventive, prophylactic or curative measures prescribed by the employer's physician or by the authorities to avoid diseases or accidents", such refusal could constitute just cause to terminate the employment contract;
2. Taking into account that currently the National Government has not established mandatory vaccination for the entire Colombian population, and the individual rights of the workers, the termination of the contract for refusal to be vaccinated could be considered a violation of Human Rights, as stated by organizations such as the World Health Organization, and the termination of the employment contract would be unjustified.

In any case, and in view of the lack of clarity regarding the position of the National Government and the Ministry of Labor, it would be up to a labor or constitutional judge to determine whether or not the termination of the contract for this reason constitutes a violation of the fundamental rights of the worker.