Can Workers be Required to Get the COVID-19 Vaccine?
by Natalia De Paz, Luis Azuaje, Isabel Pestana, Wilder Márquez, Luis León, Francisco Ure,Teylú Sepúlveda, Katiusca Mendoza
Published: February, 2021
Submission: March, 2021
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Employment & Labor
As of March 11, 2020, the date on which the World Health Organization (WHO) declared COVID-19 a pandemic, States have taken various measures such as social distancing, restriction of free movement, the closure of borders, among others, which have undoubtedly had a decisive impact on people in general, and especially on workers and employers. This virus managed to spread throughout the world in a matter of months and only in America registered a death toll of over 1 million people at the end of 2020 . Now, the year 2021 seems to be the year of mass vaccination of the world population, and while waiting to know if vaccination will be mandatory or not, the debate is generated about whether the employer can require its workers to be vaccinated as a requirement indispensable for the provision of the service.
Faced with this question, two antonymous positions arise that are based on fundamental rights, such as the right to health of workers and the economic rights of the employer (for whom the employer can demand the vaccine), and the right to work in conditions of equality and non-discrimination (for those who claim that the employer cannot demand immunization against COVID-19 from their workers or applicants for employment).
Next, an analysis of each of these positions is carried out, considering their legal foundations and the consequences that one or the other would entail for the employer.
CRITERIA ACCORDING TO WHICH THE EMPLOYER MAY REQUIRE WORKERS TO GET THE COVID-19 VACCINE
Legal Basis: weighing judgment
The opposition of fundamental rights between the employer's position on the demand for vaccination and the position of workers or applicants on not being vaccinated can only be resolved through the "Weighting or Proportionality Theory" developed by the writer Luis Pietro Sanchís  , who defines it as " the action of impartially considering the opposing aspects of a question or the balance between the weight of two things ."
According to the aforementioned author, weighting is a method to be applied in a specific case to resolve an antinomy between norms of equal rank, and this is achieved through an analysis of the antinomic situation following the scheme proposed by the Spanish Constitutional Court, where It must be verified that what is intended to be protected: (i) is a fundamental right, (ii) that the measure is proportional and effective with respect to the constitutional principle faced, (iii) that there is no other way to resolve it, and (iv) that there is a balance between the benefit of the measure taken and the damages that it causes to the limited right.
In light of the above, the rights invoked by the employer when demanding the vaccine, and those invoked by the workers or applicants to refuse it, must be analyzed, and thus consider the constitutionality of the employer's measure.
Worker's right to healthcare
It is established as a fundamental social right in article 83 of the Constitution of the Bolivarian Republic of Venezuela (CRBV), where the State has the obligation to guarantee it and the citizens the duty to promote and defend it in order to guarantee the welfare of the collective. Likewise, the right to health is considered part of the right to life “ (…) because the health condition that each citizen or a specific community may have is intrinsic to life itself (…) the right to health does not imply only medical care provided by State organs, but it involves other rights such as the right to prevention and medical treatment of diseases, access to medicines (…) ”  .
In the workplace and in accordance with the provisions of the CRBV  , and the Organic Law of Prevention, Conditions and Work Environment (LOPCYMAT), workers have the right to develop in a suitable and conducive work environment, where adequate safety, health, and well-being conditions are guaranteed. Similarly, employers have the duty to adopt the necessary measures to guarantee workers health, hygiene, safety and well-being conditions at work (arts. 53 and 56).
The foregoing evidences an employer's duty to guarantee their workers appropriate health conditions in the workplace, and in the context of the COVID-19 pandemic, it is argued that the vaccine is: “ (…) one of the most common measures cost-effective (sic) to control the COVID-19 pandemic and reduce the impacts on health, the economy and society (…) ”  , since the vaccine“ (…) will create immunity without the harmful effects associated with COVID-19. Allowing the disease to spread to herd or group immunity could cause millions of deaths and more people living with the long-term effects of the virus ” . In this sense, vaccination is considered an essential method to combat the COVID-19 pandemic, since it seems that the world could not, and as a consequence, the work centers, be safe until mass vaccination is achieved.  .
Therefore, it is clear that the present situation raises a state of necessity regarding the interests of the collective over the individual, so that, returning to the labor plane, establishing the mandatory nature of the vaccine for workers could not be considered a violation of rights individuals of those who do not wish to be vaccinated, especially when this is an essential requirement to guarantee the right to health of the generality of the workers and the development of their functions in a work environment with adequate safety, health, and well-being conditions, all this in the terms established in the aforementioned articles 83 of the CRBV and 56 of the LOPCYMAT.
Economic rights of the employer
Economic freedom is “ (…) first and foremost, a constitutional right or, if we follow the broad meaning of the term defended by the doctrine and reflected in the jurisprudence of the Constitutional Chamber of the Supreme Court of Justice, a fundamental right (…) ”  .
In our Constitution it is included in Article 112, which fundamentally establishes the right of everyone to engage in the economic activity of their choice with no limitations other than those provided by law. This right does not only refer to the selection of that activity, rather, it must necessarily cover how this activity is exploited.
That is why, from the labor perspective, economic freedom is closely linked to the managerial power of the employer, as indicated by the doctrine:
"Working within the scope of organization and direction of the employer, undoubtedly means being obliged to carry out the agreed work ´under the direction of the employer or person delegated by him." This normative reality is an obligatory complement to an economic order based on the freedom of business that would not make sense if its owners could not organize it. The employment contract is immersed in an area where one of the parties, the employer, has the power to organize the system of production of goods and services that it has freely decided to install (…) ”  .
By virtue of the foregoing, it is clear that freedom of enterprise is the constitutional foundation of the employer's power of direction, and under which the employer has the right to organize the production process as it considers it.
The Constitutional Chamber has ruled on the limitations to economic freedom by means of judgment No. 1,798 dated July 19, 2005, stating the following: “ (…) economic freedom, as with other constitutional rights, is not an absolute and unrestricted concept, since, in addition to the limits defined directly in the Constitution itself, express limitations can be set, by law (...) that is, absolutely excluding the possibility of formulating such limitations by means of specific acts or provisions sublegales (…) ”.
This position of the Constitutional Chamber is clear when it establishes that economic freedom, due to its condition as a fundamental right, is only limited by law, therefore, the power of employer management could not be limited when it, in a well-founded manner, establishes that it is essential that its workers and applicants for the position are vaccinated as a necessary condition for the provision of the service, on the grounds that it is costly  and unjustified to maintain labor biosafety standards over time, with a more efficient and simple alternative such as vaccination ; To argue otherwise, it would result in an excessive and very burdensome restriction on the employer's freedom of business that, in the opinion of the Constitutional Chamber, can only be limited by law.
Now, having analyzed the fundamental constitutional rights to health and economic freedom that support this position, it is appropriate to analyze them in the light of the weighting scheme. Thus we have:
The Constitutional Chamber of the Supreme Court of Justice (TSJ), has indicated in relation to the integral protection of the right to health, the following:
“ (…) It should be noted that the right to health is part of the right to life, since the health condition that each citizen or a specific community may have is intrinsic to life itself, being an obligation of the State to guarantee its assurance (…) At the international level, it was proclaimed for the first time in the Constitution of the World Health Organization (WHO), of 1946, in its preamble that health is (…) a state of complete physical, mental and social well-being , and not only the absence of affections and diseases (…) ”  .
For its part, jurisprudence has already ruled in cases where the right to life (intrinsic to the right to health as indicated above) must be weighed with other constitutional rights when there is no alternative treatment:
“ Therefore, although the right of the patient to determine the course of his medical treatment is paramount, if the life of the objector is at risk, the conflict reaches a social significance where it proceeds under a proportionality test to weigh the fundamental rights in apparent collision. Thus, it is not valid that without the existence of alternative treatment the patient renounces prescribed medical care, since such resignation would violate the fundamental right to life, also stipulated as a superior value of the State (…).
(…) The foregoing is due to the fact that, although in the abstract both rights enjoy the same constitutional hierarchy, it is in the factual sphere where the weighting should be made to harmonize the simultaneous validity of both rights. In this sense, although religious freedom has a specific weight in the constitutional structure, our cultural pattern identifies as capital the respect and promotion of the right to life. This alone explains why article 2 of the Constitution establishes life as a superior value of the legal system (…) ”  .
Due to the foregoing, it is clear that: (i) the right to health is an integral part of the right to life, and (ii) being so, the right to life prevails over the same right to freedom of conscience of the individual ; more so would when mediate is a collective interest as it would in this case the vaccine COVID-19 that would meet the same factual circumstances of the case analyzed, ie the lack of an " alternative treatment " as efficient like the vaccine. And on this prevalence of collective interests, the Constitutional Chamber has also ruled, indicating the following:
“ Thus stated, these citizen protection rights are not necessarily directed against the State or its entities, but can be directed against individuals, towards organizations with or without legal personality (…).
With diffuse or collective rights and interests, it is not a question of protecting social classes as such, but rather of a number of individuals that can be considered to represent the whole or a quantitatively important segment of society, who in the face of attacks against their quality of life they feel affected, in their rights and constitutional guarantees destined to maintain the common good, and that in a collective or group way they are diminishing or deteriorating, by the action or omission of other people ”  .
Based on the foregoing, it is evident that the right to health as a manifestation of the right to life, especially when there is no alternative treatment as effective as immunization by means of the vaccine, as well as economic freedom -to the light of the weighing judgment - prevails over the individual right of those who decide not to be vaccinated, being for this reason that the requirement of the vaccine cannot be considered as an unconstitutional decision on the part of the employer, especially because this decision responds to a collective interest that it is none other than guaranteeing the health of its workers.
Decisions of the employer
The requirement by the employer of the vaccine against COVID-19 as a conditioning requirement for the continuity or beginning of the employment relationship, entails a series of situations that must be addressed and analyzed to really materialize this decision in accordance with the legal system.
Obligation of vaccination as a guarantee of the right to health of active workers
As already established, there are grounds to sustain that requiring workers to be vaccinated is constitutional, however, for this it is necessary for the employer to comply with a series of requirements, including: (i) give training talks to all workers on vaccination as a control method for COVID-19, (ii) establish vaccination as a control method for COVID-19 in the occupational biosafety protocol, (iii) include vaccination as part of the Health and Safety Program at Work, and (iv) procure the organization of vaccination days at the company headquarters or, failing that, grant time and travel facilities so that workers can be vaccinated.
It is necessary that for the employer to be able to demand vaccination as a condition for the existence of the employment relationship, it is previously established as a labor condition, otherwise, it would lack support and would complicate affirming the legality of the measure.
Along with the requirement of the vaccine, it is required that it be previously available in the country, and above all that it can be applied. Now, with the understanding that the vaccine has a cost, it is up to you to determine who should bear it.
Considering the declaration of a pandemic and that it affects the community in general, based on articles 83 and 84 of the CRBV, it would seem that the main option is that it is the State that must cover the costs of the vaccine through the system. national health public, at least with the most sensitive groups.
However, if the State does not cover it, another option would be for each citizen to pay for their own vaccination. However, if this is the case, in practice it could be difficult to guarantee vaccination in the short term due to the cost that it could imply.
The employer's decision to require the COVID-19 vaccine entails a series of consequences that it must assume, and these are referred to laying the foundations to promote vaccination previously, and starting the vaccination process, do everything possible so that the itself materialize.
As we have seen, it is the decision of each worker to get vaccinated or not, since those who decide not to do so must assume the consequences that this entails in the workplace, since in this aspect there are two fundamental consequences:
Reserved to workers, when the employer has complied with providing vaccination and they have chosen not to do so, the employer would have the right to request dismissal authorization based on literals "d)", "e)" and " i) ”of article 79 of the Organic Law of Labor, Workers and Workers (LOTTT), by virtue of the violation of article 83 of the CRBV and numerals 7 and 8 of article 54 of the LOPCYMAT, even with the filing of separation measure contemplated in article 423 of the LOTTT.
This would be the case of applicants for a position in the company, who in the recruitment phase would have to prove that they are vaccinated. In this case, it is necessary that from the beginning of the process the requirement of the vaccine is made known as an essential requirement to obtain the position.
CRITERION ACCORDING TO WHICH THE EMPLOYER MAY NOT REQUIRE WORKERS TO GET THE COVID-19 VACCINE
Legal Foundations: principle of equality and non-discrimination
The principle of equality and non-discrimination has a fundamental character for the safeguarding of human rights, both in international and domestic law, and constitutes a basic and general principle that is part of the International Law for the Protection of Human Rights.
This principle is included in various international human rights instruments, such as the Universal Declaration of Human Rights (art. 7), the International Covenant on Civil and Political Rights (arts. 2 and 26) and the American Convention on Human Rights (art. 24), among others. Likewise, it is recognized in article 21 of the CRBV, which establishes the right to equality before the Law and non-discrimination on the grounds of race, sex, creed, social condition and any other reason that aims to nullify or impair the recognition, exercise and enjoy other rights.
For the Inter-American Court of Human Rights “ The notion of equality stems directly from the unity of nature of the human race and is inseparable from the essential dignity of the person, against which any situation is incompatible that, considering it superior to a certain group, lead to treat it with privilege; or that, conversely, considering him inferior, treat him with hostility or in any way discriminate against him from the enjoyment of rights that are recognized by those who do not consider themselves to be in such a situation of inferiority. It is not admissible to create differences in treatment between human beings that do not correspond to their unique and identical nature ”  .
In the labor sphere, equality at work has been developed through eight fundamental conventions, and in particular - we are interested in highlighting in this analysis - in Convention No. 111 on discrimination (employment and occupation) of the International Organization of the Labor (ILO).
For its part, the LOTTT in its article 20 contemplates this right by imposing on employers to apply criteria of equality and equity in the selection, training, promotion, job stability, professional training and compensation of workers.
For the United Nations Human Rights Committee “ Discrimination in employment and occupation takes various forms and occurs in all types of work environments. But all discrimination has a common characteristic: it involves treating people differently according to certain characteristics, such as race, color or sex, which entails an impairment of equal opportunities and treatment. In other words, discrimination causes inequalities and consolidates them. The freedom of the human being to develop their skills, in addition to choosing and fulfilling their professional and personal aspirations, is restricted from the start, regardless of aptitudes ” . In similar terms, the ILO has established that acts constituting discrimination are: “ any distinction, exclusion or preference that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation ”  .
Based on the foregoing, it is understood that discrimination takes place when a person receives less favorable treatment than others due to characteristics that are not related to the person's competencies or the qualifications required for the job, or when the applicants themselves Employment or workers who provide services for the employer are treated differently for any reason, regardless of their attributes or their ability to do the job, it being understood that there may be discrimination in the pre-hiring stage, during employment, or at the end or end of the employment relationship.
Of course, discrimination in employment and occupation is not a static phenomenon, since throughout history we have seen its constant evolution, and even though today some of its most flagrant manifestations have disappeared, many of them persist. Others have adopted new forms and more recently we are seeing how they have acquired a more subtle and less perceptible form. Changes in the structure and dynamics of labor markets, derived from social, political, economic and cultural processes are significantly influencing a configuration of new forms of discrimination.
The requirement of the vaccine against COVID-19 as a constitutive fact of labor discrimination
As evidenced, the right to equality and non-discrimination has been developed both in various international regulations related to Human Rights, as well as in our current legal system. On this issue, the Supreme Court's Social Cassation Chamber has ruled stating that “ the subjective right to equality and non-discrimination is understood as the obligation to treat in the same way those who are in analogous or similar factual situations ( …) ”  .
For its part, the Constitutional Chamber of the TSJ has indicated that three modalities of the right to equality can be recognized, these being: “a) equality as a generalization, which rejects privileges, by binding all citizens to general norms that do not admit distinctions (…); b) equality of procedure or procedural equality, which supposes the sanction of rules of conflict resolution, equal for all, prior and impartial; and c) equal treatment, which implies serving equals equally. It happens, however, that with respect to the same factual assumption there may be differences in the elements that make it up, which would give rise to the application of different legal consequences depending on whether the distinctions are relevant to justify unequal treatment (equality as differentiation ) or irrelevant, in which case equal treatment will be given (equality as equalization) ”  .
Thus, in the workplace, they are acts that constitute discrimination, any unequal treatment in employment or in the establishment of working conditions, for reasons of gender or sexual preference, social condition, religion, political ideology, union activity, etc. , (the so-called "irrelevant differentiation criteria"), or any other based on differentiating criteria incompatible with the legal system. Similarly, acts of employment discrimination are considered to be situations that may arise prior to the birth of the employment relationship, such as, among other assumptions, imposing as a condition of admission to the applicant the abstaining from the exercise of union activities, or submitting the woman to medical or laboratory tests to diagnose pregnancy.
There is no doubt that the requirement of the vaccine against COVID-19 seeks to protect the health of people, as well as - in the case of individuals - contribute to the obligation of States to meet the just requirements of public health and general welfare in a democratic society. However, it cannot be overlooked that while said vaccine is not mandatory, various factors are at stake that can have a decisive impact on people's will to access or not to apply it, such as: (i) pathologies or pre-existing medical conditions that make vaccination impossible or create greater health risks; (ii) diverse religious views and objections to vaccines;
In accordance with the foregoing, condition the hiring of an applicant, the resumption of their activities to a worker and the permanence in the job to the application of the vaccine, without taking into consideration aspects such as their capacity, quality and aptitude to develop the functions inherent to the position, constitutes a manifestly discriminatory act, violating the right to equal opportunities to access employment.
Additionally, it could also be considered a discriminatory practice that threatens, even, their freedom of work, understood not only as the right that the human person has to choose the type of occupation or trade that best suits them, but also the right that they have that, once this occupation or trade has been chosen, " their activity may not be subject to other restrictions than those established in the Law " 
Differences between the requirement of tests or diagnostic tests, and the application of the vaccine against COVID-19
The tests or diagnostic tests are intended to rule out or confirm the existence of the virus in the body of the person to whom it is performed preventively, while the vaccine, for its part, plays an immunization role against the virus.
Since the declaration of a State of Alarm throughout the national territory as of March 2020  , employers have incorporated biosecurity measures into their organization based on the recommendations of the WHO and of the institutions or bodies themselves government, as is the case of Resolution No. 090 issued by the Ministry of Popular Power for Health (MPPPS)  .
However, despite the fact that said Resolution does not establish as a mandatory preventive measure the performance of tests or diagnostic tests on workers so that they can stay or attend their jobs, the mandatory isolation measure is established in case of presenting any symptoms or a positive diagnosis of COVID-19.
Consequently, so that an employer can determine if a worker is infected or not with COVID-19, and in that sense specify if he is suitable to be hired, remain in his job or resume his activities, or if on the contrary he should require you to comply with the mandatory isolation measure established by the MPPPS, it is necessary to carry out a diagnostic test that confirms or rules out the presence of the virus in your body, in such a way that employers can require the performance of said tests as a preventive measure, in order to comply with its obligations to monitor and control occupational health and safety in accordance with the provisions of the LOPCYMAT.
The requirement of the diagnostic test is different from the requirement of application of the vaccine against COVID-19, since, as indicated, the vaccine is intended to create immunization to the disease and not prevent contagion. In addition to this, the WHO has ruled stating that “ the vaccine should not be mandatory (…), people should have all the information on vaccines available to protect themselves from COVID-19 and have the freedom to make a decision about to be immunized or not, unless they are in very specific circumstances (…), the regulations will depend on each country, but the position of the WHO is that the strategy of informing the public is the one that works best ”  .
For these reasons, any demand against the will of the worker or the applicant for employment, regarding the application of the vaccine against COVID-19, either for their hiring, to resume their work or to remain in employment, constitutes an action. discriminatory that violates the right to equality and non-discrimination, as established by the various national and international regulations already mentioned.
In Venezuela, the Immunization Law  is in force , which establishes preventive immunization as a matter of public interest and as a fundamental instrument of national health policy. Consequently, this Law provides for the mandatory nature of vaccination against those diseases that can be prevented in this way, as long as there is a Resolution issued by the competent Ministry, in this case, the MPPPS.
However, until it is mandatory through its imposition by means of a Law, Regulation or Resolution issued by the competent Ministry, employers cannot demand the application of the vaccine against COVID-19 to their workers or applicants to the employment, since this action is discriminatory and violates the right to equality and non-discrimination at work, enshrined in our domestic legal system both in the Constitution  and in the LOTTT  .
However, it is the duty of employers, as established by the LOPCYMAT, to adopt the necessary measures to guarantee health, hygiene, safety and well-being conditions at work  , being, for their part, a fundamental right to workers, carry out their activities in a safe work environment where adequate health conditions are guaranteed  .
In this sense, given the health emergency caused by COVID-19 and the inadmissibility of requiring the application of the vaccine, employers must optimize their systems for the prevention of unsafe conditions and epidemiological surveillance of workers, this in order to avoid the contagion and spread of the virus. For this, the recommendation is: (i) fully comply with the provisions contained in Resolution No. 090 issued by the MPPPS; (ii) implement mechanisms to control the health of workers (for example, constant monitoring of symptoms and / or performing tests or diagnostic tests), maintaining an updated record of them, and (iii) developing protocols, action plans, and specific occupational health and safety programs to mitigate the risks associated with COVID-19, following the guidelines issued by INPSASEL .
Finally, in line with the WHO postulate, it is also recommended that employers include within their internal protocols the carrying out of information campaigns on immunization against COVID-19, and promote the application of the vaccine among their workers, in accordance with so that vaccination is carried out entirely voluntarily and not as a requirement or imposition by the employer.
 Constitutional Justice and Fundamental Rights , Editorial Trotta, 2003.
 Judgment No. 1566 of the Constitutional Chamber, dated December 4, 2012.
 Article 87 in fine of the CRBV.
 Fight myths about COVID-19 vaccines . PAHO, 01/25/2021: https://www.paho.org/es/documentos/combatir-mitos-sobre-vacunas-contra-covid-19
 Casal, Jesús María, Human Rights and their Protection. Studies on Human Rights and Fundamental Rights , 3rd Edition, UCAB, 2012, Page 152.
 Palomeque, Manuel C. and Álvarez, Manuel, Labor Law , 12th Edition. Editorial Centro de Estudios Ramón Areces, 2004, Page 506.
 COVID - 19 and the world of work. S é ptima edition or n Updated estimates and analysis (25.01.2021), ILO: 2020 lost 8.8% of working hours worldwide with respect to the fourth quarter of 2019, equates to 255 million full time jobs.
 Judgment No. 1,566 of December 4, 2012, case GR .
 Judgment No. 1431 of August 14, 2008, Yolima Pérez Carreño case .
 Judgment No. 656 of June 30, 2000, Dilia Parra Guillén case .
 Advisory Opinion OC-4/84, of January 19, 1984. Series A No. 4: https://www.corteidh.or.cr/sitios/libros/todos/docs/cuadernillo14.pdf
 General Comment No. 18 of the Human Rights Committee: https://www.acnur.org/fileadmin/Documentos/BDL/2001/1404.pdf
 Questions and Answers on Business, Discrimination and Equality . ILO: http://www.oit.org/empent/areas/business-helpdesk/faqs/WCMS_159778/lang–es/index.htm#F5
 Judgment No. 1,267 of August 12, 2014, CADAFE case .
 Judgment of May 13, 2002, case of the Central University of Venezuela .
 Judgment of March 6, 1991 of the Fifth (5th) Court of First Instance of Labor of the Judicial District of the Federal District and Miranda State, CANTV case .
 Decree No. 4,160, published in the extraordinary Official Gazette No. 6,519, of March 13, 2020.
 Published in Official Gazette No. 41,891, of June 1, 2020.
 Published in Official Gazette No. 35,916, of March 8, 1996.
 Articles 21 and 89 of the CRBV.
 Articles 18 and 21 of the LOTTT.
 Article 56 of the LOPCYMAT.
 Article 53 of the LOPCYMAT.
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