“In Mexican legislation there is no justification for this. If someone is asking for a vaccination certificate against Covid-19 as a requirement to return to work, a fault is being committed, it is not legal to condition access to work, ”said Hugo López-Gatell, Undersecretary of Prevention and Health Promotion, during a conference last month. Paradoxically, October saw significant growth in the job vacancies that require immunization within the requirements.
According to Indeed, between August and October the proportion of companies that explicitly request the covid-19 vaccine in their recruitment processes in Mexico. Although vacancies barely represent 209 jobs for every million ads on the platform, since July there has been a steady increase in job offers with this requirement.
The dynamics does not change when considering the companies that ask for the “vaccine” in their vacancies, in this case without specifically mentioning “covid-19”. These represent 605 for every million job opportunities posted on the online job board.
“The partial or complete opening of offices and the expectations of the workforce to meet again in a physical space lead companies to take measures to guarantee a safe work space, considering hygiene, health and social distancing, but also to implement additional requirements from the hiring stage to safeguard the well-being of its work teams. That is why we identified an increase in vacancies where they request as a requirement the covid-19 vaccine”Said Luis Vidrio, Sales Director for Indeed in Mexico.
However, this condition that companies are adopting in their personnel selection processes opens a debate on whether the end justifies the means, since the authorities have emphasized that it is illegal to request the covid-19 vaccine as a requirement to enter the job.
According to the Federal Attorney for the Defense of Labor (Profedet), request the vaccination certificate against covid-19 as a condition to grant employment or guarantee permanence in it is a violation of the rights granted by the Constitution and the Federal Labor Law (LFT).
“The certificate of vaccination against covid-19 It cannot be used as a condition for hiring or staying in employment ”, the authority indicated through social networks.
Discrimination and possibility to sue
Hugo Hernández-Ojeda, partner of the Labor Practice in Mexico of Hogan Lovells, affirmed that the requirement of immunization of workers, the application of tests and all the sanitary measures that employers may request must be analyzed from a labor perspective because they directly affect the working relationship.
“There are issues at the time of hiring that are not viable, such as vaccination certificates, it is like asking a woman to give us a certificate of non-pregnancy, that is totally discriminatory and that in any Court can be won by a worker “, stressed the specialist during panel La compulsory vaccination for the return to work life in the office hosted by Hogan Lovells.
Conditioning employment on the vaccine, said the specialist, may be a cause to initiate a labor judgement. Although the challenge will be to verify during the process that the company requested the inoculation to access the position, but it is the workers’ right to sue if they are in a recruitment process with this requirement.
“What companies can do is encourage their workers to get vaccinated, inform them of the benefits of getting vaccinatedWith these measures there is no problem, as long as they are a suggestion and it is voluntary for the workers to be able to do it or not ”, added Mary Carmen Fuertes, counsel of the firm’s labor practice in Mexico.
The labor legislation, the specialists agreed, only allows employers to request compliance with sanitary measures and, where appropriate, ask workers to submit to tests for covid-19, but there is no legal basis that a company can use to request the vaccine as access or permanence in employment.
Little clarity in the legal framework
“The law does not say a vaccine, the law talks about medical examinations, for example, but nowhere does it say a vaccine. In this, language is fundamental, because at the end of the day you are also playing a right of non-discrimination important. What happens if for ideological or religious reasons I make the decision to get vaccinated ”, explains Carlos Ferran Martínez, managing partner of the Ferran Martínez firm.
In this sense, the specialist affirms that the legal framework in labor matters does not include sufficient elements to request the vaccination certificate in a vacancy or to keep employment. However, there are interpretations that have given rise to positions to request inoculation in their job offers.
At the global level, there are several countries that have made the vaccine compulsory for work, recently Italy joined the bloc of economies that imposed this measure, one of the strictest on the European continent.
On USA There has also been a trend to request immunization against Covid-19 to access employment, as their labor laws do not prevent employers from imposing this requirement. But the US Equal Employment Opportunity Commission warns that companies will be held accountable for allegations of discrimination.