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Rules for the unimmunized, by Mariana Barreto | OPINION


Mariana barreto

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On November 14, Supreme Decree 168-2021-PCM was published, through which the established that, as of December 15, companies with more than 10 workers will only be able to operate in person if all employees certify the full dose of against him . Far from justifying the relevance of this measure or specifying what will happen to the personnel who are currently working and have decided not to be vaccinated, this provision has generated numerous uncertainties in the private sector.

Indeed, the ambiguity of numeral 14.7 allows the text to have different interpretations. In the first place, some media have affirmed that, if 100% of the personnel are not fully vaccinated, the company would not be able to return to face-to-face work. This is neither logical nor coherent, since business activity cannot depend on the decision of one or more workers.

Second, although Law 31091 indicates that immunization against the COVID-19 is voluntary for the population, the Supreme Decree would include a series of restrictions that create the impression of having migrated to a scheme of vaccination “Almost” mandatory, despite the current position of the labor authorities.

Let us remember that both the Ministry of Labor and Employment Promotion and Sunafil have the position that employers cannot require their workers to be vaccinated. The main argument used by both entities is that forcing staff to be vaccinated violates the individual right to freedom of conscience and free development of personality.

Notwithstanding this, we consider that this rule should contemplate exceptions making use of the ‘weighting test’ between individual rights and the collective right to health, especially in work spaces where there is a greater risk of contagion or exposure to the virus. This is the case of healthcare personnel, those exposed to the public or those who provide healthcare services.

Finally, it is urgent that complementary norms be dictated that regulate what will happen in case workers have decided not to be vaccinated, especially when labor authorities maintain a closed position, without exceptions, on the matter. Meanwhile, employers should require workers to provide information about the vaccination and make every effort to sensitize those who have not yet been vaccinated to the benefits of receiving the full dose of the vaccine. vaccination, even more so when the new restrictions implemented by the government exceed the workplace.



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