[author: Cristina Oviedo]*
We asked our 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. Cristina Oviedo shares her views from Peru.
Can an employer require compulsory 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 N° 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 abovementioned, 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 do employers 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.
What benefits or accommodations do employers have to make for vaccinated employees?
Our government has not issued any specific regulations regarding this issue. However, based on health and safety internal policies, companies may implement certain accommodations for this group of employees.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
Our government has not issued any specific regulations regarding this issue. Notwithstanding the abovementioned, if the employer rigorously complies with the regulations regarding health and safety and COVID-19 protocols, we consider that the employees that are already vaccinated will not have solid grounds to 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?
Our government has not issued any specific regulations regarding this issue. Therefore, it is not mandatory to provide paid leave for employees to get vaccinated.
*Payet, Rey, Cauvi, Pérez Abogados