Costa Rica: Q&A - Employer COVID-19 Vaccination Policies (Updated)

*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*

Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?

Currently, the COVID-19 vaccine has only been supplied by the Government to the population over 70 years old and to health workers. As of today, the law does not regulate a mandatory COVID-19 vaccination, so currently the employers are not entitled to compulsory require a COVID-19 vaccination to the employees.

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?

Considering that currently there does not exist regulation that states a mandatory COVID-19 vaccination in Costa Rica, the employees can refuse to be vaccinated.

To provide a safe work environment, employers must execute in the workplaces the mandatory protocols, guidelines and sanitary measures established by the Ministries of Labor and Health due to the declaration of a state of emergency caused by COVID-19, which were established to prevent occupational risks due to coronavirus. Eventually, if an employee is not vaccinated, sanitary measures must be followed to avoid any risk of contagion.

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?

In Costa Rica, an employee cannot be dismissed for refusing to comply with a vaccination policy. The refusal to be vaccinated does not constitute a just cause for termination.

In case an employee is dismissed without just cause (with employer’s liability) based on the fact that the employee refuses to be vaccinated, the employee can file a legal claim before the Court pleading discriminatory dismissal, and if so there is a high probability that a labor judge considers the dismissal as discriminatory and consequently condemn the company for damages and even a reinstatement. This is unless vaccination is set forth as mandatory by law (which currently is not).

What benefits or accommodations do employers have to make for vaccinated employees?

The Costa Rican labor law currently does not state benefits or accommodations to vaccinated employees.

Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?

Vaccinated employees cannot refuse to work near or in the same vicinity as unvaccinated employees. Employers cannot create a different set of rules for vaccinated and unvaccinated employees. Making this type of distinction between both can be considered discrimination.

In your country, are employers required to provide paid leave for employees to get vaccinated?

A paid leave proceeds for the reasonable time it takes the employee to go to the Health Center to be vaccinated and then return to work, which means that the paid leave will only cover that period of time.

Contributor

Arias
Carolina Soto Monge
Carolina.Soto@ariaslaw.com