One of the biggest challenges the Colombian Government is facing is the adoption of guidelines and criteria to define the mandatory nature of vaccination among the workforce. On various occasions, the government was categorical in stating that Colombia implemented a vaccination plan that is not mandatory.
It was initially considered that employers should continue to rely on their employees regardless of whether they were vaccinated or not. However, although this understanding has evolved, especially with the requirement for mandatory full vaccination schedule for certain activities, the parameters set in this regard are still not sufficient.
An overview of the measures implemented concerning vaccination
The Colombian Ministry of Labor has recently changed its position concerning the mandatory nature of vaccination in the workplace. This has given rise to endless discussions with respect to the employers’ possibility to require employees to have the complete vaccination scheme as a condition to remain on their job, depending on the work activity they perform.
Circular 0022 of March 2021 and Circular 0047 of August 2021, issued by the Colombian Ministry of Labor, were the first regulations to establish that it was not feasible to demand an applicant or employee to take the Covid-19 test as a requirement for employment, nor it was appropriate to require the application of the vaccine for such purposes.
This restrictive position was recently modified by Circular 0003 of January 12, 2022, issued by the aforementioned Ministry. Such circular responded to the accelerated increase in Covid-19 cases and the issuance of Decree 1615 of 2021, which set forth the requirement of the vaccination scheme for the productive sectors open to the public.
The Colombian Ministry of Labor modified its position when confronted with this new reality, providing a list of employees for whom the vaccination requirement is applicable. That is, those “who provide their work in mass attendance events such as, bars, gastro-bars, restaurants, cinemas, discotheques, dancing places, concerts, casinos, bingos and leisure activities, sports scenarios, amusement and theme parks, museums and any activity involving attention to the public. ” Based on this provision, it is valid to conclude that Circular 0003 of January 12, 2022, determined that vaccination for this group of people is mandatory. Thus, failure to comply with such obligation could give rise to disciplinary sanctions or even termination of the employment agreement with grounded cause.
However, there are still sectors that were not expressly contemplated, opening space for some questions. What about mandatory vaccination in the public transportation sector or for those who work in confined spaces, such as mines, or employees in prisons or educational centers? As far as these matters are concerned, there is still no answer from the government. In addition, the provision “ any activity involving attention to the public” set forth in Circular 0003 of 2022, cannot be taken lightly; extensive interpretations could give rise to claims of discrimination.
Is vaccination of relevant employees an obligation, or a suggestion?
To escalate even further the discussion related to Circular 0003 of January 12, 2022, the Colombian Ministry of Labor recently issued an infographic document, entitled “ABECÉ of the Circular 003 of 2022″, which, in addition to providing an informal interpretation of the Circular 0003 of January 12, 2022, states that: employees who do not have a complete vaccination scheme or who refuse to get the vaccine cannot be terminated for this reason. Instead, they must be relocated to another job position, where it is not essential to have the vaccination scheme. It seems as if the Ministry of Labor is trying to impose some indirect regulatory parameters by means of an infographic document such as ABECÉ of the Circular 003 of 2022, and, to some extent, change its initially foreseen position in Circular 0003 of January 12, 2022, regarding mandatory vaccination for certain personnel.
Is an infographic document issued by the Colombian Ministry of Labor a source of law? Once confronted with this question, it is important to analyze the sources of law in Colombia. Pursuant to paragraph 4 of Article 137 of Law 1437 of 2011, circulars issued by the public administration are subject to nullity actions. This means that Circulars are administrative acts susceptible of jurisdictional control, which is why it is possible to allege that they are a binding sources of law in Colombia. In this way, Circulars have power to produce legal effects insofar as they create, modify, or extinguish legal situations. Consequently, provisions contained in Circular 0003 of January 12, 2022, impose obligations on all Colombians, especially on employers and employees of certain sectors.
Contrary to the above, there is no source of law stating that informative documents issued by public entities, such as the ABECÉ of the Circular 003 of 2022, are mandatory or enforceable. Furthermore, it is evident by their own nature, that they are not intended to command obligations, but on the contrary, only provide mere suggestions or interpretations with respect to the formal sources of law. In view of the above, ABECÉ Circular 003 of 2022, issued by the Colombian Ministry of Labor does not disregard the provisions of Circular 0003 of January 12, 2022. So far, there has not been a substantive declaration by the Ministry of Labor to provide employers and employees with clear criteria regarding the duty to have a complete vaccination scheme for certain activities.
Consequences of not complying with the “obligation” in charge of employees to provide evidence of the vaccination
Having considered the sources of law in Colombia it could be stated that Judges, as the authorities interpreting and enforcing legal provisions, should abide by the obligations of Circular 0003 of January 12, 2022. Because, unlike the ABECÉ Circular 003 of 2022, which we repeat is just an infographic document, the circular is a legal binding source, which are mandatories for all.
However, possible contradictions between Circular 0003 of January 12, 2022 and ABECÉ Circular 003 of 2022 could lead to uncertainty related to the actions that should be taken by employers when employee who holds a position that requires vaccination does not get it. Actions could involve retaliation against him/her for not complying with a mandate of law, but its legal obligations could be misinterpreted by how the authorities have avoided taking a clear position on the matter. In our view, it is misleading for the Colombian Ministry of Labor to change its position on such a sensitive matter, by means of an infographic document that is not considered a binding source of law.
Fundamental rights at stake require proactive measures from authorities
Although it is true that facing the debate on whether the full vaccination scheme should be mandatory or not implies a weigh of rights, it is not the exclusive competence of the Colombian Ministry of Labor. It is worth bearing in mind that the measures taken with respect to mandatory vaccination put fundamental rights at stake. Nonetheless, whereas these measures have an effect on fundamental rights, they should be unified by all the governmental sectors and rapidly decided. This means, regardless of how difficult it is for the government to state a substantive pronouncement on the subject, there are constitutional methods for the weighing of rights required by this type of regulations.
In the Colombian case, the Constitutional Court has the power to study public policies that involve carrying out an integrated judgment of equality, in order to weigh the fundamental principles that are opposed or clashing on certain circumstances. Broadly speaking, this judgment is issued whenever a measure appears to be contrary to what is stipulated in Article 13 of the National Constitution, which sets forth: “All persons are born free and equal before the law, shall receive the same protection and treatment from the authorities and shall enjoy the same rights, freedoms and opportunities without any discrimination for reasons of sex, race, national or family origin, language, religion, political or philosophical opinion”. The judgment of equality is a test practiced by the Colombian Constitutional Court, and its purpose is to evaluate what is sought by the measure to be implemented, the means to achieve it, and the relationship between this means and its grounds, ensuring the protection of fundamental rights and the precepts established in the National Constitution.
The purpose of the explanation above is to show that having fundamental rights in conflict does not exempt the authorities from pronouncing on the merits and taking measures in this regard.
Issues that generate controversy and debate do not entitle the authorities to take evasive positions on the matter, nor to put political interests over fundamental rights. Moreover, considering that the issue is so serious as to involve multiple fundamental rights, it configures a compelling reason to provide society with a substantive decision. Therefore, it is imperative to reach a national consensus on the implementation of measures concerning mandatory vaccination.
The risks of acting against the Ministry’s interpretation
At this point, it is worthy to mention the risks that an employer may face by misinterpreting its powers in accordance with the currently established measures, considering the uncertainty concerning the legally enforceable action that can be taken against an employee who is not vaccinated in one of the activities that apparently requires it. As of today, it is not clear, as mentioned above, whether this situation gives rise to a grounded cause of termination of an employment contract or to impose some type of disciplinary sanctions against the employee (after conducting a disciplinary proceeding).
As set forth, in article 64 of the Colombian Labor Code, if an employer unilaterally and without cause terminates an employment contract, then it must pay a statutory severance. The amount to be paid to the employee depends on the type of contract and time of employment, however the point is that eventually affected employees could claim that dismissal was based on discriminatory grounds, which may lead to the protections derived from a reinforced job stability.
The first country in Latin America to adopt mandatory vaccination for the entire population was Ecuador, when their Ministry of Public Health issued on December 23, 2021, the “Guidelines for mandatory vaccination against SARS CoV-2”. These guidelines made vaccination mandatory in the whole national territory, justified by the epidemiological status, the appearance of new variants, the constitutional mandate of prevalence of the common good over the particular, and the contents of the Organic Law of Health, which recognizes the mandatory immunization for certain diseases in response to the epidemiological reality of the country.
In the case of France and the United Kingdom, the vaccination requirement has been imposed only on personnel who, by virtue of their profession, have direct contact with the public, such as healthcare staff, firefighters, public transport workers, among others.
Thus, there are several measures adopted by foreign governments that restrict the freedom of employees to decide to not get vaccinated. However, from the previous examples, it seems to converge the need for vaccination for those activities and jobs that may involve a higher risk of infection, regarding those that have contact with numerous people. In this way, vaccination ends up being the main instrument to protect health and safety in the workplace, and in case it is not guaranteed, it could entail the employer’s responsibility.
The need for the Colombian government to regulate and standardize the matter
Based on the current global tendency to regulate this matter, and based on the increasing number of daily contagions and new variants, it is safe to assume that Colombia will not be able to avoid moving towards mandatory vaccination, in terms of the inclusion of additional activities, as well as the consequences of non-compliance by employees. Thus, the Colombian Ministry of Labor will have to continue adopting new guidelines in order to detail the other activities, and empower the employer to demand compliance with this obligation, even explicitly allowing the termination of the employment contract with grounded cause. These guidelines should be adopted as binding administrative acts, maintaining a clear position regarding the necessity of being vaccinated in certain professions and the consequences that not complying with this rule will lead up to.
It is also important to reach a national consensus regarding the position on vaccination; this type of statements should not be made through independent normative sources, coming from different governmental authorities. It should be based on the hierarchy of norms, which in the words of the Constitutional Court of Colombia, “The hierarchy of norms means that those of higher rank, with the Fundamental Charter at the head, are the source of validity of those that follow them in the hierarchical scale.” Therefore, the Congress is urged to unify the national position and declare a law that sets up a clear stance regarding mandatory vaccination.