On March 23, 2022, the Labor Directorate issued a pronouncement by means of Ruling No. 482/09, in which it refers to the scope in labor matters of the national vaccination process against Covid-19. Specifically, this pronouncement states the following:
1. Employers are not empowered to require their employees to undergo the vaccination process against Covid-19, since the vaccine is not mandatory. The only authority that has the power to order its obligatory nature is the President of the Republic.
2. The fact that the employer refuses to grant the agreed work to a worker for not being vaccinated against Covid-19, constitutes a breach of the obligation to provide the agreed work and, therefore, of Article 7 of the Labor Code, which provides that the employment contract generates obligations for both parties. The foregoing, without prejudice to the analysis that may be made on a case-by-case basis by the Labor Directorate or what may be resolved by the Courts of Justice.
3. In view of the fact that the competent authority has not made any distinction regarding the compulsory nature of vaccination against Covid-19 for certain workers, based on the nature of the work they perform, the Labor Directorate cannot make such a distinction, since it would imply arrogating to itself powers that have not been conferred upon it.
4. The employer cannot condition the validity of the labor relationship to the fact that a worker is vaccinated, since, in fact, it would imply forcing him to be inoculated. Therefore, it would not be in accordance with the law for an employer to invoke such facts as grounds for the termination of the labor relationship, without prejudice to what the Courts of Justice may decide in each particular case.
5. In the event that an employer requires the Covid-19 vaccine as a hiring requirement, such action, not being related to the personal capacity and suitability of the worker, could be considered as an act of discrimination.
6. Permission to go for vaccinations against Covid-19, since it is not regulated, shall be in accordance with the provisions of Article 66 ter of the Labor Code, the Internal Regulations on Health and Safety, or as agreed by the parties in the individual or collective contract.
7. In the event that the parties are unable to reach an agreement regarding the aforementioned leave, the employee may also go to be vaccinated against Covid-19, without this being considered an unjustified leave, as long as it is accredited with the corresponding proof of vaccination.
Therefore, it would not be in accordance with the law to invoke such facts to terminate the employment relationship, without prejudice to what the Courts of Justice may determine in each particular case.
Should you require additional information on this matter, please contact: Alfred Sherman (email@example.com), Gonzalo Aravena (firstname.lastname@example.org) and/or Felipe Ovalle (email@example.com).