Julian De Diego
Lawyer. Employment advisor of companies and chambers of business. Academic Counselor for Libertad y Progreso.
This article was originally was originally published in El Cronista on August 26th, 2021.
Those who do not work do not get paid. This is a basic principle under labor law, whereby workers get paid in exchange for their services for their employer. This is a general principle that has to be respected, with some exceptions under special circumstances. Thus, all employees should get vaccinated with a few exceptions under extraordinary circumstances. Even though vaccination is not mandated for citizens in general, which is controversial in itself, employees are required to get vaccinated in the context of an employment relationship.
Actually, based on the principle of good faith, cooperation and preventive safety, employees are required to get vaccinated in accordance with the current text of the Employment Contract Act (LCT, for its acronym in Spanish).
The duty of good faith, under Section 63 (LCT), requires both parties to act in good faith. Strictly speaking, this principle governs the expected conduct of those who may be exposed to Covid-19, in particular in relation to mass vaccination.
This also applies to the principle of mutual cooperation (Section 61 LCT), whereby both parties -employees and employers alike- are required to help their company, both directly and indirectly, not only in accordance with the terms of the contract but also in relation to their expected conduct, as provided by the law based on the principle of cooperation and solidarity.
In addition, as per the duty of prevention, employees and employers are required to take any preventive measures of hygiene, medicine and safety in order to avoid the spread of diseases or accidents, including Covid-19 and its variants (Section 75 and related provisions LCT).
Under the National Act of Occupational Safety and Hygiene (Act No. 19587), Section 10, employees are required to comply with all hygiene and safety rules and regulations, and with the recommendations about mandatory use, preservation and care of personal protective equipment and machinery, operations and working processes. They must also undergo preventive or periodic medical examinations and comply with the prescriptions and orders given for this purpose. They must observe all prevention regulations, and cooperate with any training and educational programs on hygiene and safety designed by their Company, and take courses during working hours. A good employee is expected to get their second shot, for personal health and prevention reasons and for the health of their fellow co-workers, line managers and colleagues, considering vaccines are already available nationwide. Then avoiding their own infection and that of third parties becomes a legal duty aimed at safeguarding a legally protected interest: psychological and physical health and life.
As a result of the legal system currently in force, employees cannot decline vaccination, and therefore cannot refuse to go back to in-person work. In case of a breach, and after asking employees to get vaccinated, employers may impose disciplinary actions. If employees refuse to get vaccinated without a legitimate reason or, once vaccinated, they refuse to go to work, they may stop accruing wages or even get fired with fair cause. Employers may consider they are abandoning their job or resigning. In any case, employees must always undergo any medical examination ordered by their employer, and any maneuver to evade or simulate it is expressly punishable under the law with forfeited wages (Section 209 and 210 LCT).
In January 2021, Pope Francis was vaccinated and set an example. In his traditional Angelus address, he emphasized the need to get vaccinated as a duty inherent in the human conscience and defined it as an “act of love towards oneself and towards others”. Then he also said it is a duty of solidarity to combat the pandemic effectively.
Under exceptional circumstances only, like in the case of employees with a religious objection who are not allowed to take invasive actions such as vaccines, these groups may be excused from the mandate but during their absence from work, they could forfeit their wages because they do not actually work.
In other words, citizens, in general, do not have the legal duty to get vaccinated, but the scenario changes radically for employees under employment relationship because the specific legislation creates general obligations that make it enforceable.
Therefore, there is not only a moral duty but an obligation under labor law, because it is a bilateral contractual relationship (“synalagmatic”) governed by the principle “exceptio non adimpleti contractus” [Latin term for a remedy that allows a party to withhold his own performance, accompanied by a right to ward off a claim for such performance until the other party has duly performed his or her obligations under the contract], whereby work done by one of the parties should be paid by the other in accordance with general legal principles.
Consequently, if employees fail to comply with their obligation to work without a legitimate reason, not only do they forfeit their wages, but also they may be subject to disciplinary actions. Their employers may even consider they abandon their job or resign, and terminate their employment without severance pay.
