[author: Laura LaFuente]*
WLG asked member firms around the globe to provide some insight on employer and employee rights when it comes to requiring the COVID-19 vaccine to return to work. Responses for Argentina have been updated with new questions since its initial publication in January. (View responses from other countries here.)
Can an employer require compulsory COVID vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
Unless there is a law providing for a mandatory COVID vaccination, employers cannot compulsorily require their employees to get vaccinated. Getting vaccinated is voluntary.
Nevertheless, employers may summon employees to return to work, including those who are exempted from work, who have received at least the first dose of any of the vaccines intended to generate acquired immunity against COVID-19 authorized for use in the Argentine Republic, regardless of age and risk condition, 14 days after the inoculation. The employees summoned must submit reliable proof of the corresponding vaccination or state, as a sworn statement, the reasons why they could not be vaccinated.
The following employees are exempted from being summoned:
(I) Workers with Immunodeficiencies:
- Congenital, functional, or anatomical asplenia (including sickle cell anemia) and severe malnutrition.
- HIV depending on status (< 350 CD4 or with detectable viral load).
- People with immunosuppressive medication or corticosteroids in high doses (greater than 2 mg/kg/day of methylprednisone or more than 20 mg/day or its equivalent for more than 14 days).
(II) Oncologic and transplant patients:
- With oncohematologic disease for up to six months after complete remission.
- with solid organ tumor under treatment.
- solid organ or hematopoietic precursor transplant recipients.
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, employees can refuse to be vaccinated. However, Article 63 of the Labor Contract Law No. 20,744 establishes that the parties are obliged to act in good faith, adjusting their conduct to what is proper of a good employer and a good employee, when entering into, executing, or terminating the employment contract or the employment relationship. By virtue of this, workers who have the possibility of accessing vaccination and choose not to be vaccinated must act in good faith and do everything in their power to mitigate the damages that their decision may cause to the employers.
Employers must keep enforcing the necessary health and COVID 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?
Currently and until April 25, 2021 dismissals without just cause, for lack of work or a decrease in work, or due to force majeure are prohibited by law in Argentina, thus, employees can only be dismissed with justified cause. Said prohibition has been extended before, therefore it is quite likely that the government will extend it again, for as long as the pandemic crisis affects the country.
Employers can still dismiss employees with just cause, i.e., in the event of the employee’s failure to fulfill his/her obligations which, by their gravity, do not consent to the continuation of the labor relationship. Labour laws do not list specific breaches that justify dismissal; the scenarios should be analyzed on a case-by-case basis and the employer has the burden of proving the cause of dismissal. Given that vaccination is not mandatory by law, refusing to be vaccinated cannot be considered as a justified cause of dismissal. Even if it were mandatory, in case an employee refuses to be vaccinated due to its religious beliefs or because he/she has a disability which would make it unsafe, it would not constitute a just cause of dismissal. Labour courts may even consider it as a discriminatory act against the employee, which would enable him/her to be reinstated or compensated.
What benefits or accommodations do employers have to make for vaccinated employees?
None. Vaccinated employees should continue to follow all current protocols and care guidelines.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
In your country, are employers required to provide paid leave for employees to get vaccinated?
Yes. The non-attendance of the employee during the working day that coincides with the day of application of the vaccine shall be excused, without causing the loss or reduction of wages, salaries, or rewards for this concept.
In order for the absence to be excused and be entitled to salary payment, the employee must have prior authorization from the employer and submit proof of vaccination.