[author: Carolina Soto Monge]*

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 not yet arrived in Costa Rica. Unless the law states a mandatory COVID-19 vaccination, employers will not be entitled to compulsory require the 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 does not exist a 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 or 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 against he/she, and if so there is a high probability that a labor judge considers the dismissal as discriminatory and condemned the company for damages and even a reinstatement. This is unless vaccination is set forth as mandatory by law (which currently is not).

*Arias