As a result of COVID-19, all countries in the world have had to take measures to prevent the spread of the virus, such as the use of mandatory masks, restriction to public places, avoiding crowds, and mandatory vaccination, the latter being the reason for the present writing. Can companies oblige their workers to be vaccinated in a compulsory way in our country?
One of the theses held by those who are in favor that the company can order its employee to be vaccinated is based on the provisions of ordinal 15 of article 88 of the Labor Code, which establishes the following:
“By refusing the worker to adopt preventive measures or to follow the procedures indicated by the law, the competent authorities or the employers, to avoid accidents or illnesses;
Which leads to an exhaustive analysis of the scenario in which we live with the legal text, that is, in our country, there is no regulatory framework that requires a citizen to inoculate. Another issue to take into account is that the efficacy of vaccines continues to be closely monitored even after their introduction in any country.
In that same situation, vaccination is not, to date, a mandatory procedure indicated by law or any competent authority. In fact, the Ministry of Labor itself, through Resolution No. 17/21, has referred to vaccination and the role of employers, and in it, it only tells them to give workers facilities to go to the vaccination days.
In the aforementioned resolution there is no mention of the power to oblige, or even to urge or motivate workers to go to vaccination centers. It is limited only to indicate to employers to facilitate permits and measures so that workers can go to them, even the World Health Organization (WHO) itself has suggested to countries that their citizens get vaccinated, however, they have never raised it as a mandatory requirement.
Our Constitution in article 42, numeral 3, establishes the following:
“No one may be subjected, without prior consent, to experiments and procedures that do not conform to internationally recognized scientific and bioethical standards. Nor to medical examinations or procedures, except when his life is in danger. “ This right is also enshrined in article 28, letter j), of the General Health Law, No.42-01, which in turn establishes the following: “The right not to undergo medical or surgical treatment that involves serious risk to your physical integrity, your health or your life, without your written consent or that of the responsible person, the latter only in the event that the patient is not in the capacity to give it and whenever it is for their benefit ”.
We must remember that vaccination against COVID-19 has been approved in the State of Emergency, internationally, and not all possible side effects have been verified.
The FDA (Food and Drug Administration) has issued documents discussing the possible risks of the vaccine, including the following: Chest pain; difficulty breathing; severe allergic reactions; myocarditis (inflammation of the heart muscle); pericarditis (inflammation of the outer lining of the heart); among others.
Consequently, the COVID-19 vaccine implies risks to the physical integrity, health, or life of those who receive it, and, in accordance with the legal texts described above, people have the right not to be subjected to said treatment without your written consent and that do not conform to internationally recognized scientific and bioethical standards.
Given the above, we understand that, at the national level, for employers to be able to require their workers to be vaccinated against COVID-19, the following scenarios need to occur:
First, that the World Health Organization (WHO) approves the application of the vaccine against COVID-19, under normal conditions, and not under emergency conditions as it was approved, ensuring that it does not imply a serious risk to physical integrity, health, and lives of people, except for isolated cases (such as might be allergies. This under as soon WHO approve the application of the vaccine COVID-19, it would lose the character experimental possessing currently, and, consequently, when ordering vaccination, the provisions of paragraph 3 of article 42 of our Constitution would not be violated.
Second, that a law is approved and promulgated in the Dominican Republic, which establishes the obligation to be vaccinated against COVID-19 in order to exercise a justified dismissal against workers who refuse to be vaccinated, based on what is established in the numeral 15 of article 88 of the Labor Code [1].
Until both scenarios occur, whether or not to vaccinate against COVID-19 will remain optional for each person.
[1] At the time of writing this article, a bill regarding the mandatory nature of vaccines is submitted, which was approved by the Senate on September 2, 2021.
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