In December 2020, the government launched the COVID-19 vaccination campaign (called ‘Strategic Vaccination Plan against COVID-19 in Argentina.’)[1] The government’s objective is to vaccinate the country’s population by stages, according to risk prioritization and availability of vaccine doses. In the first stage, priority was given to front line healthcare workers, people at risk groups, teachers, and security forces. Currently, people not included in these priority groups are being vaccinated.

Although the vaccination campaign is still in progress, employers have started to think about what will happen when this campaign reaches the last stages and business activities return to normal.

At this point, some questions arise: will vaccination against COVID-19 be mandatory for employees returning to the workplace? Can employers mandate that employees receive the COVID-19 vaccine before returning to the workplace? What can employers do if employees refuse to be vaccinated?

Obligation to get vaccinated

Vaccination Law No. 27,491, approved by the National Congress in April 2019, provides that the following vaccines are mandatory[2]:

• Those included in the National Vaccination Calendar;
• Those recommended for groups at risks by the National Health Authorities, and;
• Those stipulated by the authorities in an epidemic emergency.

In October 2020, Law No. 27,573 declared the research, development, manufacture, and acquisition of vaccines intended to generate acquired immunity against COVID-19 to be in the public interest. The law provided the National Executive with the necessary powers to acquire vaccines against COVID-19. However, the law did not mention anything regarding whether (i) the vaccination against COVID-19 will be compulsory, (ii) the vaccines against COVID-19 will be included in the National Vaccination Calendar.

Resolution No. 2883/2020 of the Ministry of Health clarified this matter when approving the vaccination plan in December 2020: Vaccination against COVID-19 is voluntary.[3]

Later, in April 2021, the ministries of Labor and Health jointly enacted Resolution No. 4/2021, allowing employers to request their employees -including those who are vulnerable- to return to the workplace 14 days after being vaccinated with the first COVID-19 vaccine dose (except for employees suffering from immunodeficiency, oncological disorders, and transplant patients.) Employees requested to work in person who decide not to be vaccinated must act in good faith and take all possible actions to prevent causing any damages to their employers.[4]

This leads to the conclusion that employers may encourage their employees to vaccinate but cannot force them to do it.

Unless a specific regulation is issued stating that vaccination will be mandatory or allowing employers to mandate vaccination, non-vaccinated employees willing to return to their workplace may object to getting vaccinated. In this case, employers may not punish or terminate employees with fair cause.

However, exceptions may be admitted in certain specific industries or activities in which employees may highly expose other employees, patients, providers, or customers to COVID-19. This will depend on each specific case.

Alternatives to be considered by employers

So, the question that follows is: What can employers do to prevent the spread of COVID-19 among their employees?

Labor regulations provide that employers must take all measures necessary to protect the employees’ psychophysical health.[5] Employers may analyze taking different actions to comply with such regulations without involving compulsory vaccination.

Employers may consider moving non-vaccinated employees to other workplaces (safer places with less contact with people and strict hygiene protocols) or to continue having them working from home, whenever possible.

Even though these practices may seem reasonable from a health and safety standpoint, this issue will require a case-by-case analysis to avoid possible legal risks.

Local regulations allow employers to change non-essential employment conditions, as long as these changes are reasonable and do not have a negative impact on the employees’ rights. Otherwise, employees may challenge changes introduced by the employer and even consider themselves constructively dismissed.[6]

Measures such as changing the non-vaccinated employees’ workplace, having them work remotely, or other similar alternatives may seem reasonable in certain cases and, in others, not. This will depend on many different factors such as the business, industry, and the particular circumstances of each employee.

Another option that employers may consider is to give specific benefits to employees who vaccinate and return to work in person to encourage vaccination. Employers should avoid incurring in discrimination.

It is important to analyze these matters very carefully to avoid decisions that may not be feasible for your business and may expose it to legal risks.

In case your organization would like to seek advice in connection to these or other employment-related matters, please get in touch with one of the key contacts listed.

[1] Approved by Resolution No. 2883/2020 by the Ministry of Health.

[2] Section 7, Law No. 27,491.

[3] Section 6, Resolution No. 2883/2020 of the Ministry of Health.

[4] Section 4, Joint Resolution No. 4/2021 of the Ministries of Health and Labor.

[5] Section 75, Employment Contract Act.

[6] Section 66, Employment Contract Act.