Introduction
National Vaccination Plan
Private vaccination plans
Vaccination abroad
Impacts of vaccination on employment
Comment
National public immunisation has developed rapidly of late. The National Vaccination Plan and the authorisation of private vaccination plans have accelerated the rollout, in addition to a limited number of cases in which employers have permitted and even sponsored employees to be vaccinated abroad. Colombia is one of a few countries that has allowed private vaccination schemes for employers and contractors as means of economic recovery. It marks a significant change in Colombia's vaccination strategy from that of a few months ago when employers and company guilds were pressuring the government to authorise these private schemes. Employers can now make or continue with preparations for the return of vaccinated employees to the workplace, in addition to dealing with employees and future hires who refuse vaccination.
Three different strategies have been used to vaccinate the population: the National Vaccination Plan, private vaccination plans (for employees, contractors and their families) and vaccinations abroad abroad (in some cases with authorisation or sponsorship from employers).
On 29 January 2021, the Ministry of Health and Social Protection implemented the National Vaccination Plan through Decree 109, currently for nationals and foreigners part of diplomatic or consular missions aged 12 and over. This plan has given priority to those in certain professions at high risk of exposure to contagion (in addition to age and those with health conditions (morbidities)) and is now in its fifth and final stage. Decree 109 establishes that only the Ministry may acquire and import vaccines to Colombia; and as responsible and coordination of vaccination, this entity will inform when private agencies may access vaccines to commercialise or apply them.
As of August 2021, approximately 14 million citizens have been fully vaccinated, and a total of 32 million doses have been administered. The national population is approximately 50 million. While there is still a long way to go until the entire population is vaccinated, immunisation has become available for almost every eligible individual.
Private vaccination plans were finally authorised from April 2021 following Resolution 840, which established such schemes as important to revitalising employment. The Ministry of Health thereby allowed companies to privately vaccinate their employees, contractors and their families. These plans must be voluntary and granted for free to beneficiaries. The government established different criteria to acquire, import, apply, coordinate and/or donate vaccines to employees, contractors and family members, each step with different requirements that can be developed or executed by a different company or entity.
From a practical perspective, private vaccination required companies to work together to create a significant demand to negotiate vaccines and governmental cooperation. However, following the authorisation of the plans in April 2021, pharmaceutical companies announced they would not sell vaccines directly to private companies and entities. In response, the government assisted an initiative established by a group of companies to buy vaccines for employees, contractors and their families. Under the coordination of the National Business Association of Colombia (ANDI), these companies deposited funds with a fiduciary, with ANDI itself coordinating the distribution of the vaccines through health providers. Starting in July 2021, this plan has sought immunise 1.25 million nationals with the Sinovac vaccine. Some other associations exploring the possibility of similar schemes with governmental support; however, the rollout of the National Vaccination Plan began to accelerate at the same time as that the private plans were implemented and consequently no more private initiatives were formalised. Employers seeking to implement similar schemes are still permitted to do so.
From an employment standpoint, it is advisable to formalise vaccination plans in writing to mitigate risks and have clear rules for all parties involved, such as literature on eligibility, exclusions, voluntary participation, gratuity, dates and places of application, responsibilities, authorisation to handle personal data, consent to receive vaccination, nature of the vaccine (in terms of personal protection), among other important matters.
Unlike the prior two approaches, vaccination abroad is a largely a personal initiative. In a few cases, employers have sponsored employees to participate in foreign vaccination programmes or allowed them to work abroad to receive the vaccine, however:
- this alternative is available only to individuals with the means to travel; and
- less people are travelling as the National Vaccination Plan rollout is more efficient and covers almost all of the population.
Vaccination abroad is still a viable and legal option, given that Decree 109 obliged citizens to register if they were vaccinated abroad.
Impacts of vaccination on employment
In answer the most common question related to employment and the vaccine: employers cannot make vaccination mandatory, neither as a condition for hiring nor continuing employment. This is because:
- vaccination against covid-19 is not currently mandatory in Colombia;
- an individual has the right to decide which medical protocols and treatments they receive;
- an individual has the right to accept or reject medical procedures; and
- medical intervention without the individual's permission is unconstitutional.
Therefore, employers cannot stop paying salaries, impose disciplinary action or terminate the employment of employees who refuse the vaccine. Requiring employees to be vaccinated, or denying them a job if they refuse, could be considered as unlawful discrimination, especially if they object for reasons related to their mental or physical health, their religion, or for personal reasons. Coercive action could trigger risks of claims of discrimination and violation of the employee's right to privacy and intimacy.
In practice, however, employers as owners or tenants of the workplace, can refuse entry to unvaccinated individuals on the basis of preventing contagion. It is important to have a clear strategy when faced with refusals to vaccinate because the only possible solution is denying the employee physical access to where they work, but this cannot impact the employee's salary or employment. For example, remote working or period of leave can be considered on a case-by-case basis to mitigate risks.
To combat such issues, employers can (and should) design return to work strategies according to the vaccination status of employees. Regulations regarding this are included in Resolution 777, which established that employers can implement schemes to return to work on-site for both fully vaccinated employees and employees who refused vaccination.
In answer to another frequent question: employers cannot request employees to provide information related to their vaccination. This is private and sensitve medical information that can only be given voluntarily. Data privacy authorisations are essential when collecting personal and collective information on the vaccination status of employees or contractors, or when the company possesses this information due to its private vaccination plan. It is also important for the company to establish whether it is required to register such information before the National Registry of Data Bases.
These three approaches to vaccination have allowed the country's level of protection against covid-19 to continually improve in recent months, with the National Vaccination Plan being mostly responsible for the increased uptake.
The return to work schemes for current employees set out in Resolution 777 provide an opportunity for employers to avoid the potential challenges discussed above posed by current or potential employees. Doing so will better equip employers to adopt business practices to varying attitudes towards the vaccine and not face legal action resulting from unlawful dismissals, salary decreases or denying employment.
For further information on this topic please contact María Paula Dueñas Hincapié at Baker McKenzie by telephone (+57 1 634 1500) or email ([email protected]). The Baker McKenzie website can be accessed at https://www.bakermckenzie.com/en.