COVID-19 vaccination and testing in Colombia - employment law perspective

Vaccines in Colombia are voluntary; hence, an employer cannot obligate an employee to be vaccinated. However, there are no regulations forbidding the possibility for employers to provide incentives to employees as extra-legal benefits, to the point that even the Ministry of Labour on External Circular 047 of August 2021 recommends that employers promote strong educational campaigns to employees explaining the perks of receiving vaccines in order to encourage them to get vaccinated. 

Through the general obligation of diligence, care of instructions and preventive orders for accidents or occupational diseases of article 58 of the Colombian Labour Statute, employers should have real and updated information to be able to instruct employees on the advantages and perks of being vaccinated and to promote and incentivise vaccinations. 

For employees who do not want to be vaccinated, a financial incentive would vitiate consent and the principle of voluntary vaccinations. Instead, an employer may choose to keep the worker in home office or with the necessary biosafety measures to comply with the precepts to care for the general interest of the individual (which is also stated in Circular 047 of August 2021), and to protect the employee and the company in general.  

There are no obligations for employers to provide vaccines. However, there are no restrictions on offering vaccines to employees as extra-legal benefits. Also, there is no obligation to support third parties or governmental institutions regarding vaccination programmes. 

However, since the expedition of Resolution 507 of April 2021, the Ministry of Health established the possibility that private entities, such as employers, could acquire vaccines assuming their costs, in order to give them without charge to employees who voluntarily opt to be vaccinated. 

In principle, for public health issues, general interest should prevail over the individual. However, the employer can request employees to provide this information, but the employees can refuse to provide this information given the fact that it is related to their health, which is reserved and confidential information.

But in the case of this pandemic, the government should permit employers to require and revise the health information and vaccination history of their employees as part of their obligations related to complying with occupational health and safety policies and regulations.

No, there is no obligation. Nevertheless, in the framework of the occupational health and safety system, there is a distinction between employees who do not want to be vaccinated, and those who hide that they were vaccinated. Workers have the obligation to care for their health and to offer truthful information about it. 

In addition, it is important to consider that from the beginning of the sanitary emergency, since this is an issue that includes us all, the government has asked employers to adopt safety protocols and has also asked workers to comply and promptly report any health news, so that employers can adopt corresponding measures with employees to ensure their health and wellbeing in the workplace. 

In principle, no. As stated, vaccinations in Colombia are voluntary. Hence, any moves by an employer to include a vaccination requirement in an employee´s employment contract could be considered anti-constitutional, which  leaves the company vulnerable to constitutional actions. In regard to this subject, the Ministry of Labour in Circular 047 of August 2021 stated that an employee's refusal to be vaccinated cannot be grounds for dismissal because this would be considered a discriminatory measure.

However, in the case of health employees who were prioritised to get the first vaccines given the relevance of their duties and the necessity to be vaccinated as soon as possible due to their specific occupational hazard, we consider that refusal to be vaccinated could be considered noncompliance with labour obligations related to self-care. Also, there are other sectors that, due to the work activity, in which employee vaccinations should be mandatory in our estimation in order for general health and safety to prevail. 

Yes, they can refuse given the fact that vaccinations are voluntary. Employees are not obligated to give reasons for refusing. 

Nevertheless, in our opinion even if it is not mandatory to give the reasons for refusing, the employer should be informed of this refusal, since the employer needs to know which employees can be considered for the execution of certain activities, depending on the nature of the work. 

Also, in the case of professions in which vaccinations are mandatory, we reiterate that despite the fact that there is not a specific regulation that makes vaccinations obligatory for certain sectors and specifies consequences for refusal, we consider that in the case of health staff the denial of vaccinations could generate internal disciplinary procedures not connected with noncompliance with mandatory vaccinations, but related to a failure of exercising careful conduct since such a failure would be contrary to the employer´s internal codes for health and safety.

Employers can refuse to admit these employees and arrange for them to work remotely or establish other measures, all depending on the nature of each worker’s activity, as a method of prevention of contagion. Companies, however, should be careful about how these measures are implemented in order to avoid that some may be considered discriminatory, which is why it is advisable to generate strong internal biosafety protocols that apply equally to vaccinated and non-vaccinated employees. However, the contract cannot be terminated because of this refusal since this could be considered an unconstitutional measure according to dispositions stated by the Ministry of Labour in Circular 047 of 2021. 

According to the dispositions stated in Circular 047 of 2021, it is important to guarantee that the measures implemented by employers are not unconstitutional or discriminatory. Hence, if employers want to restrict the entry of non-vaccinated employees, it is necessary that these restrictions come from an objective perspective, such as the internal biosafety protocols that establish certain limits on the number of people in the building in order to avoid possible claims that employees are undergoing discrimination. 

As previously mentioned, making distinctions could be risky given that people may claim they are undergoing discrimination. Hence, if employers design internal policies in which employees are required to report their current vaccination status, these policies should be directed at the entire population.

The Ministry of Health has made it possible to download the digital vaccination certificate on the special webpage “MiVacuna.Com”. Nevertheless, due to infrastructure problems and the fact that many people still have not completed their vaccination scheme, the vaccination process has been slow.

As mentioned above, it is important that in order to avoid possible claims of discrimination, these restrictions must be based on objective reasons, which is why it is important to design internal biosafety protocols in which these measures are based on the specific biosafety needs according to the number of employees and the rules of social distancing according to the size of the workspace or the places at which events will be held, among other considerations.

At this moment, Colombian immigration authorities do not request proof of vaccination.   

However, for Colombian nationals taking a business trip to another country where there are vaccination-related entry restrictions, this business traveller must adapt to the location (i.e. country) where the work activity must be carried out, considering the fact that each country has different requirements and restrictions. 

If certain employees decide not to be vaccinated, the company is advised to avoid assigning these employees to business travel, given that they are more vulnerable to infection with a contagion. Also, there is a higher risk that they may pass the virus to other passengers, co-workers or people they come in contact with. In this case, the employer could be held responsible for not taking preventative action. However, if it is strictly necessary for the employee to travel, given the fact that the trip is work related, the employer should be responsible for the costs of a COVID-19 test, which can guarantee that the employee is not infected and therefore able to travel.

Discussion in the future should revolve around whether or not an employee is obligated to be vaccinated given the fact that at this moment, even though employers can provide workers with vaccines for free, employers cannot make vaccinations mandatory. 

In addition, the risk of contagion in companies is currently high. Therefore, there will surely be legislation that favours the requirement of information on the health of employees, particularly surrounding health and safety obligations at work.

No, employees cannot be obligated to take a COVID-19 test. However, depending on the work activity and the responsibilities of the employee (e.g. work trips where an employee's travel is strictly necessary), the employer can provide examinations and occupational tests to determine if it is possible to send its employees to another workplace. 

Also, according to biosafety protocols, employees are obligated to report their health status in order to preserve the health of their co-workers. As stated before, general wellbeing must always prevail over the individual. 

Even though the previous answer is negative, it is important to underscore that legally there is no established time and frequency for taking the tests. In addition, a laboratory authorised by the Ministry of Heath must conduct the tests. 

In this case, it is obligatory in light of the duty to establish biosafety protocols within the occupational health and safety systems within companies. Also, Resolution 777 of 2021 states that a worker is obligated to comply with biosafety protocols adopted by the employer, give timely reports of any cases of contagion that occur in the workplace or families, adopt health care measures, report alterations in health status to the employer and report alterations of health status, especially related to symptoms of respiratory diseases.  

Employees can refuse to be tested, but employers must take steps to ensure the health of  employees and others. As an example, an employer can assign employees to home office. However, testing cannot be a condition for terminating a contract or refusing to employ a candidate. 

The employer can assign different tasks to employees who are unable to present a negative COVID-19 test result because they have the duty to take care and preserve the health at the workplace.