Voluntary mapping of Covid vaccination in companies is proposed

Note published on October 19 in Reforma, Negocios [Business] Section by Verónica Gascón
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Note published on October 19 in El Norte, Negocios [Business] Section by Verónica Gascón
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Note published on October 19 in Mural, Negocios [Business] Section by Verónica Gascón
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Mexican legislation has no provisions for companies to demand a vaccination certificate as a requirement for work; however, when facing unforeseen circumstances, like the Covid-19 pandemic, companies could implement voluntary censuses in order to obtain a map of workers’ health with the objective of  fostering the well-being of the whole organization.

These vaccination mappings can be done as long as the consent of the employee is obtained; they cannot be understood as a condition for working and, if companies obtain this information, they must protect personal data, experts in labor matters pointed out.

For example, this information could be used to rearrange offices and implement safe distance measures, but companies cannot require a vaccination card or certificate from their employees for their return to the work centers because this could be construed as a discriminatory act.

“In terms of the provisions of the Constitution, as well as those of other federal legislations on discrimination matters, the company may under no circumstances demand from its workers any vaccination card or certificate or any other document that accredits that they have completed a vaccination cycle.

“This would be understood as discriminatory and, therefore, illegal”, pointed out  Germán de la Garza, a lawyer and expert working at Deloitte.

Jimena Sánchez, partner at the De la Vega & Martínez Rojas Firm, explained that there are many reasons for people to decide not to be vaccinated; due to fear, because it is not allowed by their religion, due to their state of health, among others.

Therefore, employers cannot decide to terminate the employment relationship because the worker has decided not to be vaccinated.

“As employers, we cannot dictate a measure establishing that people who are not vaccinated cannot return to work or to use this as a cause for the termination of the employment relationship”, she clarified.

“What many companies have done is to request proof of vaccination, provided that they have the employee’s consent”, she explained.

Sánchez highlighted that, being health data, it is considered as sensitive data and its request should be preferably accompanied by a privacy notice.

“Given that this is health data, it is considered as sensitive data and the way in which it must be treated is very specific and it is regulated by the Federal Law on the Protection of Personal Data in Possession of Private Parties.

“They must have a privacy notice in which the collaborator is told why the information is being collected: perhaps it is for statistical reasons, to arrange the layout of offices and take safe distance measures, there can be many motives. But this cannot be a measure to decide whether they return to work or not”, Sánchez stated.

Several federal and local authorities have made it clear that there will be sanctions for companies that demand this document as a condition for workers.

The undersecretary of Prevention and the Promotion of Health, Hugo López-Gatell, stated on Tuesday that there is no justification for the requirement of a certificate of vaccination against Covid-19 as a requirement to return to the work centers.

“There is no justification for this in the legislation of Mexico. If someone is requiring from you a certificate (of vaccination against Covid) as a requirement for returning to your work, an infraction is being committed. It is not legal to deny access to work to people that do not meet this condition. The Department of Health has not established having proof of vaccination as a requirement to be able to return to work”, he said.

“We established the vaccination certificate with the purpose of facilitating the transit of travelers to other countries. Unfortunately, many countries established the requirement of proof of vaccination as a mechanism to allow people entry. This has important gaps in terms of scientific robustness in a measure of this nature, but some nations have established this type of requirement”, he added.

Thus, now that the epidemiological traffic light is green, more workers will start returning to their companies, but they will not be legally required to present proof of vaccination.

Mexican legislation has no provisions for companies to demand a vaccination certificate as a requirement for work; however, when facing unforeseen circumstances, like the Covid-19 pandemic, companies could implement voluntary censuses in order to obtain a map of workers’ health with the objective of  fostering the well-being of the whole organization.

These vaccination mappings can be prepared as long as the consent of the employee is obtained; they cannot be understood as a condition for working and, if companies obtain this information, they must protect personal data, experts in labor matters pointed out.

For example, this information could be used to rearrange offices and implement safe distance measures, but companies cannot require a vaccination card or certificate from their employees for their return to the work centers because this could be construed as a discriminatory act.

“In terms of the provisions of the Constitution, as well as those of other federal legislations on discrimination matters, the company may under no circumstances demand from its workers any vaccination card or certificate or any other document that accredits that they have completed a vaccination cycle.

“This would be understood as discriminatory and, therefore, illegal”, pointed out  Germán de la Garza, a lawyer and expert working at Deloitte.

Jimena Sánchez, partner at the De la Vega & Martínez Rojas Firm, explained that there are many reasons for people to decide not to be vaccinated; due to fear, because it is not allowed by their religion, due to their state of health, among others.

Therefore, employers cannot decide to terminate the employment relationship because the worker has decided not to be vaccinated.

“As employers, we cannot dictate a measure establishing that people who are not vaccinated cannot return to work or to use this as a cause for the termination of the employment relationship”, she clarified.

“What many companies have done is to request proof of vaccination, provided that they have the employee’s consent”, she explained.

Sánchez highlighted that, being health data, it is considered as sensitive data and its request should be preferably accompanied by a privacy notice.

“Given that this is health data, it is considered as sensitive data and the way in which it must be treated is very specific and it is regulated by the Federal Law on the Protection of Personal Data in Possession of Private Parties.

“They must have a privacy notice in which the collaborator is told why the information is being collected: perhaps it is for statistical reasons, to arrange the layout of offices and take safe distance measures, there can be many motives. But this cannot be a measure to decide whether they return to work or not”, Sánchez stated.

Several federal and local authorities have made it clear that there will be sanctions for companies that demand this document as a condition for workers.

The undersecretary of Prevention and the Promotion of Health, Hugo López-Gatell, stated on Tuesday that there is no justification for the requirement of a certificate of vaccination against Covid-19 as a requirement to return to the work centers.

“There is no justification for this in the legislation of Mexico. If someone is requiring from you a certificate (of vaccination against Covid) as a requirement for returning to your work, an infraction is being committed. It is not legal to deny access to work to people that do not meet this condition. The Department of Health has not established having proof of vaccination as a requirement to be able to return to work”, he said.

“We established the vaccination certificate with the purpose of facilitating the transit of travelers to other countries. Unfortunately, many countries established the requirement of proof of vaccination as a mechanism to allow people entry. This has important gaps in terms of scientific robustness in a measure of this nature, but some nations have established this type of requirement”, he added.

Thus, now that the epidemiological traffic light is green, more workers will start returning to their companies, but they will not be legally required to present proof of vaccination.