The right to health vs. the free development of personality

Note published on August 9 in Revista Consultoría, News Section by Diego Rodrigo Santos Garmilla.
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By: Diego R. Santos,
Lawyer. De la Vega & Martínez Rojas, S. C.
dsantos@dlvmr.com.mx
www.dlvmr.com.mx

 

Restricting access to workers or terminating the employment relationship due to the refusal of being vaccinated is, without a doubt, an unjustified coercive measure on the part of the employer.

There is currently a lack of knowledge by the business sector about the feasibility of requiring mandatory vaccination against Covid-19 from workers  in order to allow them access to work centers and even going as far as terminating the employment relationship in the event of refusal by the workers of being vaccinated.

Deriving from this problem, there is a debate on whether the workers’ right to health, which must be protected and guaranteed by the employer, can be limited by the free development of an individual’s personality.

On one hand, the protection of health is founded on a principle of common good, as guaranteeing this right is a fundamental responsibility of the State. As it is well known, the State has the obligation of creating the necessary institutional structures or mechanisms to guarantee compliance with this right.

Additionally, it has been pointed out that the Federal Labor Law  (LFT) establishes that employers have the obligation of ensuring the health of workers in the work centers through compliance with the legislation in health matters that guarantees the amplest protection of this right.

Therefore, the argument used in favor of the right to health arises in part from the idea that it is necessary to guarantee this right by making vaccination mandatory and that said requirement does not go against the individual rights of workers, being justified by a communal interest in health.

Nevertheless, this argument goes against the right to the free development of personality. Rubén Hernández Vall mentions in his book “El Derecho de la Constitución” [Constitutional Law], that the right to the free development of personality is the “human right of making decisions allowing people to determine their own decisions with no coercion or unjustified controls by the State or third parties and without the threat of being discriminated against due to their personal decisions.”

This self-determination gives the individual the right of establishing, in accordance with his own goals, ideals or preferences, the decisions that he will make on a daily basis for the construction of his own personality.

It follows, from the foregoing, that this right is aimed at the protection of human dignity and is, therefore, a basic and primary right.

Having said this, it is important to note that the violation of this right would mean direct discrimination against the person and the State has the obligation of guaranteeing the broadest protection of this right.

Based on the Federal Labor Law

Taking the conflict that exists between these two rights into consideration, it is necessary to carefully assess which one of these rights must prevail; that is, which fundamental right must prevail over the other one, as they are incompatible legal provisions.

Based on the foregoing, it is important to highlight that the LFT establishes in Article 3 that no conditions that involve discrimination among workers due to their state of health may be established. Likewise, Article 133 establishes that the employer may not refuse to accept workers by reason of their health conditions or any criterion that gives place to a discriminatory act.

The Federal Law for the Prevention and the Elimination of Discrimination establishes that discrimination will be understood as any different treatment, exclusion, restriction or preference that, by action or omission, whether intentional or unintentional, has the objective or result of hindering, restricting, preventing, impairing or nullifying the acknowledgment, enjoyment or exercise of human rights and freedoms based on health issues.

As a result of the abovementioned legislation, we can conclude that, while the employer has the obligation of guaranteeing the health of the workers, it is also true that it may not implement any type of measure that gives rise to discrimination against people; thus, requesting mandatory vaccination could imply an act of discrimination, as it would limit the right of the worker to self-determine whether he wants to be vaccinated or not.

It could be argued that the right to health is a fundamental right that is necessary to maintain the safety of all of the workers and, therefore, the employer must establish any type of mechanism that is aimed toward guaranteeing this right, including making vaccination mandatory.

However, as local and international courts have ruled, the effectiveness of this right is achieved progressively and over time; therefore, the right to health can only be violated when the necessary measures arising from legal obligations are not adopted, such as not having policies that favor the highest possible level of health or failing to comply with existing laws on the matter. In the particular case of Mexico, local and federal governments have issued various regulations establishing the obligation of the employer of establishing mechanisms for promoting and protecting the development and health of the working people without establishing, at any time, the need for mandatory vaccination against Covid-19 and various political actors have even spoken out in this regard, stating that people have the right to decide whether they want to be vaccinated.

As a conclusion, we can determine that restricting access to workers or terminating the employment relationship due to the refusal of being vaccinated is, without a doubt, an unjustified coercive measure on the part of the employer that entails discrimination by it.

The foregoing for two main reasons, the first one by virtue of the fact that the right to the free development of personality is being violated and the second one because there is no provision within the regulatory framework on health matters that establishes that being vaccinated is mandatory.

That is, in the absence of any legal obligation that requires all working people to be vaccinated, establishing vaccination as mandatory at the sole discretion of the employer violates the fundamental right to the free development of personality