President of the Superior Labour Court states that employee who refuses to be vaccinated for Covid-19 can be terminated with cause
With the growing number of labour claims related to the matter, the president of the Superior Labour Court changed her speech of the beginning of 2021 to affirm that employees who refuse to take the vaccine for Covid-19 may be terminated with cause. In her understanding, the termination with cause is valid because, when it comes to vaccines and health, the collective well-being is more important than the individual decision of taking or not the vaccine. “The collective right overlaps the individual right and if an employee refuses the vaccination, he/she will compromise the work environment, which must be promoted by the employer in the healthiest possible way. In this sense, the employer may have a good argument to terminate the employee with cause, and that is what we are seeing in the latest court decisions”, said the president.
In her understanding, if the employee has a plausible reason to refuse the vaccine (i.e., medical reason), the employer should not terminate the employee, but allow him/her to work remotely. The president, however, did not address the situation in which the employee cannot take the vaccine for a plausible reason but due to his/her position, remote work is not an option.
For the president, it is the unjustified refuse to the vaccine, which compromises the other employees of the company, that should not be allowed and validates the termination with cause of the employment relationship. The termination with cause is a plausible decision taken by the employer to preserve the collectivity and the health and safety of the work environment, in her understanding. We highlight that as well said by the president of the Superior Labour Court, the company is responsible for the well-being of the work environment and should encourage and teach its employees about the benefit of the vaccines for the employees and workplace.
Aligned with the president of the Superior Labour Court, some lower and regional labour courts have been granting favorable decisions to companies that terminated their employees with cause due to the refusal to take the Covid-19 vaccines. This is not, however, a consolidated understanding in the labour courts yet. Moreover, there is still not a specific law about the matter. With the growing number of companies returning to face-to-face work, the lack of consolidated case law about the matter, and different understandings about several aspects of the issue (e.g., what to do with employees that do not take the vaccine due to religious belief, or with employees that cannot perform the activities remotely but have a medical reason to not take the vaccine, etc.), this is an ongoing topic that should be followed closely. New regulation may be enacted, more Court decisions will be granted, and the status of the pandemic may also affect the matter.
Key Action Points for Human Resources and In-house Counsel
Before any policy obliging the employees to take vaccine is implemented, we recommend checking any possible new regulation, deciding what measures the company will take for awareness of its employees, verifying what are the positions that cannot be performed remotely, deciding what will be accepted as plausible reason for not taking the vaccine and if the company will perform terminations with cause or without cause. Obtaining instructions from an expert in health and safety at workplace about what are the conditions of the company's facilities (i.e., whether it is possible to guarantee healthy workplace) is also a good measure.
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