The national chief of the Cabinet of Ministers issued Administrative Decision 1198/2021 ("Administrative Decision"), which implements a COVID-19 sanitary pass at a national level.
In addition, the chief of the Cabinet of Ministers and the Ministry of Health of the Province of Buenos Aires issued Joint Resolution 460/2021 ("Joint Resolution"), which implements a COVID-19 sanitary pass at the provincial level.
Both passes will coexist and will not exclude each other.
The City of Buenos Aires government announced that this jurisdiction will adhere to the Administrative Decision and that it will not have a local regulation to that effect.
Due to the recent and sustained increase of positive cases of COVID-19, and to prevent the spread of the omicron variant, the national and provincial governments have decided to implement a COVID-19 sanitary pass ("Health Pass").
The Health Pass will be required for persons over 13 years old to prove their COVID-19 vaccination schedule, which must have been completed at least 14 days prior to the events listed in the Administrative Decision and the Joint Resolution, respectively, as they are considered to represent a higher epidemiological risk.
The Administrative Decision states the following:
- It sets 1 January 2022 as the effective date for the Health Pass.
- The Health Pass will be required to attend places where the following activities are held: (i) group travel (graduates, students, retirees); (ii) indoor discos and/or dance clubs; (iii) indoor social event places; and (iv) events with an attendance of more than 1,000 people. The Health Pass must be evidenced with the mobile application Cuidar or with a vaccination certificate in a paper and/or digital format issued by the Health Authority.
- Whether the vaccination schedule will be considered complete will depend on the definitions that the Health Authority may update from time to time.
- Even with a complete vaccination schedule, if a person presents COVID-19 symptoms or is identified as a COVID-19 positive case, the app will be blocked and they will not have access to the certificate until their condition has changed.
- In case of a breach of the Administrative Decision provisions or other regulations for the protection of public health in the current sanitary emergency, the infringer's conduct will be stopped and the "competent authority" will be notified. In our opinion, in such cases, among other measures, the judicial authority could be involved to determine the possible commission of crimes against public health.
The Joint Resolution states the following:
- It sets 21 December 2021 as the effective date for the Health Pass for the Province of Buenos Aires.
- The Health Pass will be required in the following situations in the province: (i) indoor cultural, sports, religious and recreational activities; (ii) in-person attendance at public agencies; (iii) in-person attendance at private entities when people congregate; and (iv) the Health Pass will also be required for employees who perform customer service tasks. Refusing to make the position available to employees with these responsibilities but without a Health Pass will trigger important consequences that must be analyzed on a case-by-case basis. While refusing to do so seems be an adequate measure to avoid exposing employers to criminal charges for alleged crimes against public health, as the Joint Resolution itself provides (see following sections), on the other hand, it could trigger employees' claims for denying work possibilities and/or unpaid wages. This is in view of higher-status regulations that might prevail over the Joint Resolution, which could favor making the position available for the employee even in the absence of a Health Pass.
- The Health Pass may be evidenced with the mobile apps VacunatePBA, MiArgentina or a vaccination certificate.
- The individuals responsible for the activities listed in the Joint Resolution will control the presentation of the Health Pass.
- Unlike the Administrative Decision, the Joint Resolution expressly provides that a breach of its provisions will result in the application of fines and a report to the competent authority for charging the infringer with commissioning an act of disobedience and for violating authorities' measures to prevent the spread of an epidemic, among others.