Today was published in the Official Diary La Gaceta the Executive Ordinance number 43543-S which refers to the mandatory vaccination against COVID 19.
As a first point, it is important to mention that this Executive Ordinance does not amend Executive Ordinance number 43249-S of October 2021, which establishes as mandatory the vaccination against COVID 19 for the employees of the Public Sector and authorizes the employers of the Private Sector to incorporate the vaccination as mandatory in the Work Centers.
The first article of this Decree 43543-S only encourages employers not to take disciplinary measures of dismissal against employees who do not have the vaccination against COVID 19, this means, it does not eliminate the possibility of employers to force their employees to be vaccinated and, eventually, to apply restrictions or sanctions to those who do not have the complete vaccination plan.
CAN MANDATORY VACCINATION AGAINST COVID 19 BE ELIMINATED?
The General Vaccination Law, in its third article, confers to the National Commission of Vaccination and Epidemiology the decision to establish a vaccine as mandatory or not, therefore, any change regarding vaccination that does not have the approval of such Commission, would be invalid. In fact, the President of the Republic, Rodrigo Chaves, today has requested the criteria to said Commission.
In fact, the President of the Republic of Costa Rica, Rodrigo Chaves, requested to the Commission their criteria regarding the obligatory vaccination against COVID 19. The Commission, through official letter number MS-CNVE-0220-2022 sent to the Minister of Health, indicated that the obligatory vaccination against COVID 19 is still mandatory, and they will proceed to evaluate recent information to review the limits of the obligatory vaccination according to scientific and epidemiological criteria.
On the other hand, the Constitutional Chamber of the Supreme Court of Justice has already indicated in repeated Resolutions that there are sufficient regulations such as Article 21 of the Political Constitution and Article 1 of the General Health Law, in addition to the General Vaccination Law already mentioned, norms that legitimize the obligatory nature of vaccination to protect the public interest and public health.
Regarding the scope of the decree published today, number 43543-S, we will have to wait for the final criteria requested by the President of the Republic to the National Vaccination Commission and the Constitutional Chamber of the Supreme Court of Justice.
WHAT HAPPENS IF A COMPANY HAS ALREADY IMPLEMENTED A POLICY OF MANDATORY VACCINATION AGAINST COVID 19?
As we mentioned before, Executive Decree number 43543-S does not eliminate the employer's power to establish as mandatory the vaccine against COVID 19, and from its wording we can conclude that it only makes a call to employers not to dismiss all workers who do not have the vaccination program.
Therefore, we consider that if your Company has a Policy that establishes as mandatory the vaccination against COVID 19, you can continue implementing it and take the disciplinary measures established therein.