Vaccine card generates controversy
The pandemic has unleashed a discussion among employers, workers, and labor administrative authorities on whether the employer can require the worker to submit to the Covid-19 test and vaccination and the consequences of the worker’s refusal.
The Constitution of the Dominican Republic, the Labor Code, the constant Jurisprudence of the Supreme Court of Justice and the Constitutional Court leave no doubts that cannot be interpreted by a jurist knowledgeable of labor law and quickly articles 44, 46, and 88 give answers to the questions, in this sense, it is an obligation of the worker to submit to the medical examination at the request of the employer to prove that they do not suffer from a contagious infectious disease.
The employer must maintain the factory, the office, and other places where the work must be performed in the conditions required by the sanitary provisions and provide free of charge the preventive medicines indicated by the health authorities in case of epidemic diseases, covering the costs of the examination or the vaccine.
Article 7 of the Regulations for the application of the Labor Code considers this refusal as a severe breach of the obligations of the employment contract, also typified as a cause for dismissal by numeral 19 of Article 88 of the Labor Code, which the employer may use to terminate the employment contract by dismissal or by the employee, in case the employer does not take such measures, to terminate the contract by resignation.
What would be the consequences if the worker refuses the medical examination against COVID-19?
The employer could terminate the employment contract by dismissing the worker with just cause, as the worker by imprudence or inexcusable carelessness compromises the safety of the company’s work center or the persons therein and for refusal of the worker to take the preventive measures and not following the procedures indicated by the competent authorities or the employer.
If the court declares the dismissal justified, the worker does not receive the indemnifications that in the street are called liquidation or labor benefits (notice and severance pay); however, the big question would be:
Is the worker obliged to be vaccinated at the employer’s request?
Undoubtedly, not being vaccinated at the request of the employer and under the suggestions of the health authorities would have the same consequences of justified dismissal, under the premise that this worker puts at risk the health and his life, that of the coworkers and the entire company, Article 88 in paragraph 15 of the Labor Code clearly states that it is cause for dismissal when the worker refuses to take preventive measures or follow the procedures indicated by the competent authorities or employers to avoid diseases.
It is a commitment, and a legal obligation for the worker and the employer under the existence of a pandemic that can affect the collective fundamental rights (the general public order is imposed to the particular public order) to take all the preventive measures that can avoid the illness or death of the workers by Covid-19, the vaccine beyond duty is an obligation (see articles 42 and 74 of the Constitution and articles 44, 46 and 88 of the Labor Code and 7 of Regulation 258-93).