Could enterprises requests employees to get vaccinated? Related Labour and Civil issues?

(Nguyễn Tuấn Đạt – Phuoc & Partners)

The World Health Organization’s (“WHO”) Director of Emergency Medicine has emphasized that “it is necessary to explain the benefits of Covid-19 Vaccination rather than coercing”[1].In that sense, in the context of the extremely complex pandemic in Vietnam after the outbreak on 27 April 2021, vaccination is not currently compulsory for people eligible for vaccination under the direction of the Ministry of Health. However, for enterprises, especially manufacturing ones, which are still confused during the implementation of the vaccination plan in the workplaces after being supplied with enough vaccines to maintain production activities to supply domestic goods and export; as well as seeking for controlling legal risks for enterprises when implementing vaccination plans.

According to prevailing regulations, Covid-19 is not currently on the list of infectious diseases to utilise vaccines and medical bio-products[2], which also means that people have the right to refuse vaccination without any administrative penalty. Therefore, if the enterprises only issue a policy that obliges employees who are eligible to be vaccinated; such a policy will be considered contrary to the laws as prescribed, also not comply with the order and promulgation procedures, leading to no legal validity[3]. Although some enterprises, especially those that are implementing “3 on the spot” have achieved a 100% vaccination rate with more than 1,000 employees at each facility, including enterprises in Dong Nai province such as Trung Dong Company, Fleming Vietnam International Company; Texhong Nhon Trach Company, Vietnam Center Power Tech Company and more than 50 other enterprises have completed 100% first-shot vaccination for employees at the facilities[4]. However, the very high percentage of the remaining enterprises have only reached a vaccination rate of 30% to 40% due to various reasons, including the fear of vaccination of a part of employees.

Even though it is impossible to “firmly” force employees to vaccinate, the introduction of regulations and policies in accordance with the labour laws, minimising labour accidents caused by Covid-19, in order to ensure that production and business activities are no longer an intrinsically issue of each enterprise but also an urgent requirement of the country in keeping the value chain, global supply to maintain economic development in the long term, this concern has been mentioned by the Ministry of Industry and Trade in Official Dispatch No. 4508[5]. Here are some proposals for enterprises to remove the remaining obstacles from a legal perspective:

• From the perspective of enterprises, the laws applied to adjust the occupational safety and hygiene in the context of the Covid-19 pandemic is the Law on Occupational Safety and Hygiene 2015 (“OSH Law”). According to the definition of this Law, an occupational accident is an accident causing injury or death to an employee, during the course of work, tasks[6]. Any employee who is infected with Covid-19 during the course of work in the workplace; or outside the workplace to perform assigned tasks; or on the route from residence to work is also considered an occupational accident. Enterprises must regularly carry out inspections and assessments; re-evaluate the implementation of the pandemic prevention and control plan; fully prepare the antiseptic solution, soap; measure body temperature at work; if there are any doubts about the health of employees, they must promptly synthesise and notify to the competent State authorities[7]. The strict implementation of the guidance on pandemic prevention will show that enterprises are strictly implementing the principle of “prioritising measures to prevent, exclude and control dangerous and harmful factors in the labour process”, which is considered as the evidence to exempt or reduce the fault factor of the enterprises if there is any dispute arising from an occupational accident caused by covid-19 in the workplaces.

Currently, all the kinds of vaccines licensed by the Ministry of Health for use in Vietnam, have been shown to be effective in preventing the progression of symptoms when infected in order to reduce the risk of death, while protecting injected people against Covid-19 is only 75% – 90%[8] of effectiveness that depending on the effectiveness of each kind of vaccine. Thus, it must be acknowledged that vaccination has helped reduce the risk of infection compared to not vaccinating, the enterprises organising vaccination for employees are considered an effective measure to prevent and control the pandemic in the labour process as prescribed by law. Regarding the rights of enterprises under the OSH Law, which states “Request employees to conform to internal regulations, process and measures for occupational safety and hygiene at the workplace[9]”, matching with this right, employees are also obliged to “Conform to internal regulations, process and measures for occupational safety and hygiene at the workplace; stick to agreements on occupational safety and hygiene in their labour contracts or collective bargaining agreements[10]”. There are 02 cases for enterprises to fulfil their rights related to the organization of vaccination as follows:

– Case 1: For any enterprise that has provisions on vaccination in the internal labour regulation at the facility and this internal labour regulations have come into effect[11], such an enterprise has the right to request employees of the eligible group to vaccinate in accordance with the provisions of the Ministry of Health[12] to participate in vaccination at the facility or provide a certificate of vaccination apply locally to be eligible to work at the facility. This requirement is an indirect measure to encourage employees to get vaccinated and to build a safe working environment.

The question is, if an employee does not agree to vaccination at the facility, how will the enterprises handle? In this case, the enterprises should consider where the error factor comes from, if such an employee does not belong to the above-mentioned vaccination qualifying group, the disciplinary settlement shall not be applied according to the internal labour regulations, and the enterprises may agree[13]: (i) temporarily assigning such employee to do work other than specified in the labour contract for no more than an accumulated of 60 working days in 01 year; (ii) in written consent if assigning the employee to a job different from that in the labour contract for more than an accumulated of 60 working days in the 01 year; and (iii) a ceasing work salary agreement for employee (not less than the regional minimum wage rate with the first 14 days); conversely, if the employee belongs to the group eligible for vaccinations but refuses to get the vaccine at the facility and does not vaccinate locally, the enterprise may consider disciplining the employee according to the internal labour regulations at the facility and performing the work(s) at (i),  (ii) mentioned above, if the employee does not agree but must cease work, the enterprise now has a legal basis to apply Article 99.2 of the Labour Code 2019 to cease work with no payment due to the fault factor stemming from the employee; and

– Case 2: For any enterprise that does not have specific provisions on vaccination, they must strictly take steps in accordance with the labour law on holding dialogue in the workplace to make requirements for supplementation of internal labour regulations at the facility such as[14]: notification of requests for discussion contents, number, participants in discussion, duration, time of bargaining, manner of conduct, consultation, etc. Then proceed to register amendments, supplements to the internal labour regulations[15]. Next, after the internal labour regulations take effect, the enterprise can apply the above-mentioned jobs (i), (ii), (iii) when there are employees who do not agree to carry out vaccinations.

Note, the right to ensure occupational safety and hygiene during the Covid-19 pandemic not only has antagonism between enterprises and employees, but also among employees. On the other side, employees have the right to “Refuse works or quit the workplace but still receive full salary without consideration as violations against labour discipline if the employees clearly recognise the hazards of occupational accidents that seriously threaten their life and heath[16]” coming from other employees or an working environment that not guarantee the occupational safety and hygiene but must notify the direct manager to have a plan to handle and only continue to work when the risk(s) has been overcome.

In some other countries, such as Latvia[17], mandatory vaccinations are imposed on all employees from 01 October  2021, employee who not comply may be laid off; in Tajikistan, a government decree obliges all citizens over the age of 18 to be vaccinated against Covid-19; or in the UK, from 16 June 2021, the government announced the imposition of mandatory Covid-19 vaccinations for all rest-home employees even they are not in the medical profession[18]. The strict, specific “coercive” application of some of the above-mentioned countries, although there are strong objections from those who apply, but law enforcement from the enterprises side is considered less of legal risk.

• From civil law perspective, people at risk of infectious diseases in pandemic areas and to pandemic areas are required to use vaccines or medical bio-products[19]. However, as mentioned at the beginning of the article, the Ministry of Health has not yet included Covid-19 in the list of infectious diseases that must use mandatory vaccines or medical bio-products. If Covid-19 is added to the list in the future, then if people do not carry out vaccinations, they must be responsible for an administrative fine from VND1,000,000 to VND3,000,000.

It is hoped that, in the upcoming time, the competent State authorities will issue more specific documents, guild in detail to enterprises and employees on the implementation of vaccination plans, removing the stuck in the law compliance when employees do not agree to vaccination at the facilities to reduce legal risks for enterprises, guarantee an occupational safety and hygiene working environment, and the most important is maintaining the production and business activities of enterprises and helping avoid the global supply chain breakage, which has taken a lot of time to build of enterprises across the country.

[1] Rfi – France – WHO opposes mandatory Covid-19 vaccination – https://www.rfi.fr/vi/quốc-tế/20201208-who-phản-đối-việc-bắt-buộc-tiêm-chủng-covid-19

[2] Article 2 of Circular No. 38/2017/TT-BYT on Promulgation of the list of infectious diseases, scope and subject to compulsory use of vaccines and medical bio-products

[3] Article 75.2 Labour Code 2019

[4] 40 “3 on the spot” enterprises implement vaccination to 100% employees – http://www.baodongnai.com.vn/tintuc/202108/40-doanh-nghiep-3-tai-cho-tiem-vaccine-100-cho-nguoi-lao-dong-3073380/

[5] The Ministry of Industry and Trade proposes to prioritize vaccination for transport and logistics employees – https://moit.gov.vn/tin-tuc/hoat-dong/bo-cong-thuong-hoa-toc-de-nghi-uu-tien-tiem-vaccine-cho-lao-.html

[6] Article 3.8 and Article 45 Law on occupational safety and hygiene 2015

[7] Article 18 Law on Occupational Safety and Hygiene 2015, Decision No. 2194/QD-BCDQG on The promulgation of “Guidance on prevention, prevention and assessment of the risk of covid-19 infection in workplaces and dormitories for employees” of the National Steering Committee for Covid-19 Prevention and Control

[8] Get COVID-19 vaccinated still positive to SARS-CoV-2 virus? – https://vncdc.gov.vn/vi-sao-tiem-vaccine-phong-covid-19-van-duong-tinh-voi-virus-sars-cov-2-nd16150.html

[9] Article 7.1 Law on occupational safety and hygiene 2015

[10] Article 6.2.a Law on occupational safety and hygiene 2015

[11] Article 121 Labour Code 2019

[12] Decision No. 3802/QD-BYT of the Ministry of Health on the issuance of interim guidance for pre-vaccination screening for Covid-19

[13] Article 29, Article 99 Labour Code 2019

[14] Chapter IV of the Government’s Decree No. 145/2020/ND-CP on detailed regulations and guidelines for the implementation of a number of articles of the Labour Code on Labour Conditions and Labour Relations

[15] Article 119, Article 120 Labour Code 2019

[16] Article 6.1.đ Law on occupational safety and hygiene 2015

[17] Compulsory vaccination in Latvia: who and when? – https://eng.lsm.lv/article/society/health/compulsory-vaccination-in-latvia-who-and-when.a413534/

[18] Covid-19 vaccination from incentive to mandatory – https://www.rfi.fr/vi/quốc-tế/20210802– -tiêm-phòng-covid-19-từ-khuyến-khích-đến-bắt-buộc-mỗi-nước-một-cách-làm

[19] Article 29 Law on prevention and control of infectious diseases