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Amanda Pardo Olarte, head of the legal office of the Ministry of Labor, pointed out that the circular seeks to protect the life and work of citizens and that mainly “it is an exhortation, an invitation for people to get vaccinated.”
“We believe that it is a measure that protects employment and at the same time protects life and health, so it cannot lead to labor disputes,” said the official after insisting that what puts employment and companies at risk is having workers patients who may end up infecting their colleagues and affecting the normal operation of companies or businesses.
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“This is a measure that we consider perfect to protect work and generates a sense of responsibility in equity,” added the official.
You can’t say goodbye
to the worker. There can be no labor reproach for a vaccination scheme that must be voluntary
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“It’s not possible. There can be no labor reproach for a vaccination scheme that must be voluntary,” he said.
Likewise, he pointed out that it would not be possible in a job call to make it a requirement that the person be vaccinated: “That is legally inadmissible because the voluntary nature of the national vaccination plan provided for in Law 2064 of 2020 and Decree 109 of 2021 is being violated. in accordance with Law 1751 of 2015, statutory health law.
The labor lawyer, Daniela Gutiérrez, considered that the obligations and prohibitions of workers and employers are already established in the law.
“The Labor Code is clear, there are lists in which the obligations are stated and that is not one. So initially there is a conflict, on the one hand there is a bioethical perspective that says that we should not force anyone to apply any medical procedure; but within the obligations of the workers is to keep the safety and health standards at work to protect the safety and life”, he said.
He indicated that the labor differences that may be generated by these decisions would remain in the hands of the judges, “and that makes the labor environment more conflictive and increases congestion.”
The lawyer and teacher Octavio Rubio Rengifo emphasized that the resolution is clear that the requirement of the vaccine is not mandatory, as has been understood, but that despite this, it can lead to decisions that put labor rights in tension.
“They can end up in guardianships for issues such as the right to work or the vital minimum,” he said.
The circular, analysts said, creates a challenge for employers who will have to seek measures to comply with it without affecting the rights of workers who do not want to be vaccinated and without altering the operation of their companies or businesses.
Professor David Pérez said that the decision creates difficulties for workers and employers. “It is not possible to force vaccination outright, but the decree is obliging it in an underhand way, it is not saying that it is a just cause nor that it is a linking parameter, but it does make it clear that the worker who is not vaccinated, and in that sense the employer will revolve around only and exclusively vaccinated personnel, “said the teacher.
Lawyer Lisbeth Gaitán Mateus considered that the Government’s measures “undoubtedly highlight the social responsibility that we all have to deal with covid-19, especially for the productive sector open to the public, there is a clear message that the general interest prevails over the individual “.
“While Decree 1615 of 2021 required a vaccination card with a complete schedule for face-to-face public events, nothing was said regarding the workers, these guidelines balanced the balance against the mandatory vaccination schedule for both attendees and those who work in open establishments,” said the expert in Labor Law and Social Security.
He added that, on the other hand, these guidelines generate a complex two-way scenario, for the employer “the obligation to demand the complete vaccination schedule from the worker, the situation worsens when he meets a worker who does not want to be vaccinated, for that reason the importance of teaching the immunization process and exhausting all possible interdisciplinary tools”.
“However, if the case is presented, the employer must be the guarantor of the worker’s rights, dismissing him without just cause carries with it some consequences for the employer, such as the obligation to indemnify the worker and expose himself to all kinds of actions or lawsuits against him, The healthiest thing is their relocation; and with respect to the worker who works in events, to comply with the application of the complete vaccination scheme, even going against their will, their autonomy, their human dignity, “he added.
The opinion of the experts coincides with what was stated at the end of last year by the European office of the World Health Organization (WHO), which described compulsory vaccination against covid-19 as a “last resort” and urged exhausting other measures. before getting to that point.