Ignacio Torres Negreira

Bergstein Abogados, Montevideo

itorresnegreira@bergsteinlaw.com

With a population of more than 3.4 million people, Uruguay is a special case study in its fight against Covid-19. During the first eight months of the pandemic, active cases did not exceed a threshold of 200. Probably the most singular peculiarity is that Uruguay never enacted an official lockdown. The government calls its policy libertad responsable (responsible freedom). It shut down schools, cinemas and shopping centres and encouraged people to work from home, wear face masks and keep distance from one another. But people were never mandated to stay at home. Equally importantly, the government heavily relied upon the advice of so-called Grupo Asesor Cientifíco Honorario (Honorary Scientific Advisory Group): a team of 55 top scientists in the country, all of them working on a pro bono basis (some of them even on a full-time basis).

As of today (April 2021), vaccination is moving at a fast pace, with approximately 50,000 shots per day. The administration has embarked upon a massive advertising campaign aimed at bringing clear, transparent and accurate information about the vaccine characteristics to the public. And the results are: in a month and a half, 40 per cent of the population has got the first shot (and many have already got both shots). This puts Uruguay near the top of the list in terms of  percentage of the population who have been vaccinated.  Today vaccination is not mandatory.

a) Constitutional law issues

As in most countries, vaccination has been subject to fierce debate and nd the legal perspective has been put on the table, with constitutional law objections being posed. Can the government force people to be immunised? How far can the vaccination campaign go in its effort to urge people to be vaccinated? Is it constitutional to establish a priority order at the time of deciding who should be vaccinated?

The Uruguayan Constitution establishes everybody’s duty of taking care of his/her health and receiving assistance in case of sickness. Such provision has been invoked to sustain that, under Uruguay’s Constitution, the Administration can establish mandatory vaccines.

On the opposite side, it has been said that mandatory vaccination would affect fundamental human rights: individuals’ right to decide how to protect his/her health, and the free choice of those who may decide not to be vaccinated.

From a constitutional perspective, Congress would be required to enact a law grounded on ‘general interest reasons’ (razones de interés general). This being so because fundamental rights secured by the Constitution (explicitly or implicitly) can only be narrowed or restricted where public interest considerations so impose.

Is there a national interest reason to mandate people are vaccinated?

The national interest notion belongs to the category of so-called general legal concepts (conceptos jurídicos indeterminados). For instance, good faith, fair cause, or good business, are other well-known legal notions or standards which belong to the same group of legal categories. Public interest makes reference to the collective interest, the common shared interest of the community – a purpose that transcends the individual to represent the community’s purposes. That is the interest that underlies any activity of the state.

In this case, the national interest is based on the need to achieve ‘herd immunity’ to cut off the circulation of a highly contagious disease and in this way, protect the population. This immunity is achieved, according to expert calculation, when 60 to- 70 per cent of the population is vaccinated, so it is a fair and reasonable argument when fewer people agree to be vaccinated.

In sum, from a constitutional perspective, the Uruguayan State has the legal tools to rule that vaccination is mandatory if necessary. This decision should be grounded in national interest reasons because it means a limitation of human rights: essentially, the individual’s right to decide how to protect his/her health, and the free choice of those who may decide not to be vaccinated.

b) Employment law issues

As the vaccination is not mandatory in Uruguay, it is natural to inquire whether employers can force his/her employees to get vaccinated? Can the employee be dismissed for his/her refusal to get vaccinated?

Employers cannot force employees to get vaccinated. No law authorises an employer to do so.

Employers are responsible for the health and safety of their employees at the workplace.  While the employer can adopt preventive actions (such as temperature screening or the use of face masks), the employer cannot affect employees’ human rights.Under the Constitution, nobody can be mandated to do whatever the laws do not impose.

That said, employers can take persuasive actions, such as displaying information on the safety and efficacy of vaccines and the benefits that vaccination brings to the protection of  public health, and the quick return to normality. The unions can certainly play a role in this regard.

Uruguayan Congress has passed a law which establishes the right of every worker (whether public or private) to benefit from a maximum period of four hours to attend a vaccination centre (in case a vaccination slot has been scheduled during working hours).

In brief: if an employee does not want to be vaccinated, the employer cannot dismiss him/her as there is no legal support to do this. While the employer is required to protect the rest of the vaccinated employees, such a right does not prevail over the employee’s legal right to decide over his/her body.