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COVID-19 vaccination in Mexico: a guide for employers

Written by
Basham, Ringe y Correa S.C., drawing on more than a century of experience helping clients to conduct business in Mexico.
Authors
Jorge De Presno
Jorge De Presno
Senior Partner - Mexico
Basham, Ringe y Correa S.C.
Mexico
26.01.21
2
As COVID-19 vaccinations start in earnest, can employers in Mexico require employees to get vaccinated, terminate employees or move them to other duties if they refuse or offer an incentive for vaccination? This article provides answers.

Employees in Mexico cannot be forced to be vaccinated. Although employers have the right to compel employees to undergo periodic physical examinations to guarantee and preserve the health and wellbeing of all employees in the workplace and prevent the spread of contagious diseases, no legal nor constitutional basis exists to force them to take the vaccine.

Employees have a fundamental personal right to decide whether or not to be vaccinated. This will remain the case unless and until there is a determination from the authorities regarding the mandatory nature of the vaccine and a possible pronouncement of the Mexican constitutional court since an obligation to be vaccinated conflicts with fundamental human rights.

In most cases, it will not be legal to dismiss employees based on their refusal to be vaccinated against COVID-19. This would only be possible if the work or activities to be performed require vaccination, otherwise, there will be no basis for dismissal.  This is like the airline industry, in which pilots must undergo substance abuse tests regularly.

Employers are entitled to transfer employees who refuse to be vaccinated to another, safer, workplace with stricter rules for protection as long as the agreed terms and conditions of employment are preserved aside from the workplace.

Employees in Mexico infected with COVID 19 or any other disease are entitled to medical attention and a subsidy paid by the Mexican Institute of Social Security before which the employer has the obligation to register them and pay the corresponding dues. In the event an employee becomes infected, the employer has no obligation to pay for sick leave or any other benefit as the Social Security Institute takes on these obligations from the employer.

Employers in Mexico may offer employees a bonus or incentive if they choose to get vaccinated, but there is no obligation whatsoever to do so

Under Mexican Data Protection Law, information from employees regarding whether or not they have been vaccinated is sensitive data. Processing is legitimate, to the extent the data subject is informed through a privacy notice and if it is necessary for the employment relationship. Additionally, it is relevant to consider whether this data may be necessary in the context of an emergency situation that could potentially harm an individual, which is a permitted category under Mexican data protection law.   

Employers in Mexico will not be held liable for COVID-19 infections suffered by their employees if they registered the employees with the Social Security Institute. Employees infected are entitled to medical attention and to a subsidy provided by the Social Security Institute and will have no claim for damages, except if the employer failed to register them