Do Spanish companies have the right to dismiss an employee in the event of non-vaccination? Will it be more difficult to find a job without being vaccinated? What are the rights of Spanish employees? Equinox takes stock with the lawyer Miguel Morillon.
Can a company fire an employee who refuses to be vaccinated?
In Spain, there are essentially two types of dismissal: disciplinary (for misconduct on the part of the worker) and objective. The latter makes it possible to lay off an employee who does not adapt to a situation. In other words, an employee is required to adapt to changes in the company. If this is not the case, a dismissal may be necessary. In the case of vaccination against Covid-19, if a company includes in its occupational risk prevention plan the obligation to be vaccinated, then a dismissal may be justified in the event of non-compliance with this rule. But to date, no text imposes vaccination in companies.
Miguel Morillon
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Should there be a modification of a legal nature to effect a dismissal for this cause?
It is possible that a decree imposing the obligation to be vaccinated is being prepared with regard to certain sectors such as public health, care for the elderly and vulnerable people, etc. But I doubt that it is possible to force anyone to forcibly inject a vaccine whose side effects are not yet known.
We must also take into account the current social and health situation: a law requiring vaccination is not necessary but an employer has the right to require his workers to adapt to the situation as a safety measure for the whole. of the company’s employees.
Ultimately, the worker has the freedom to be vaccinated or not and the employer is free to dismiss or keep his employee in his post. While failure to be vaccinated may result in infecting third parties, it should be understood that the employer has the right to choose workers who, with the same qualifications, are vaccinated.
What are the rights of an employee refusing vaccination? What does Spanish law say?
In Spain, work-related vaccination is only provided for in article 8.3 of Royal Decree 664/1997, concerning the protection of workers against the risks associated with exposure to biological agents: – “When there is a risk of exposure to biological agents against which there are effective vaccines, these must be made available to workers, informing them of the advantages and disadvantages inherent in vaccination. “.
In reality, this regulation is not applied in the strict sense only to professionals in the health sector (doctors, nurses and laboratory assistants), and always voluntarily. The company has a duty to provide the treatment, but it is the employee who decides whether or not to submit to it.
However, in the current situation, Spanish regulations continue to give priority to the right of the individual to his own body over the collective and to the protection of the health of others. So far, the legislator has not considered it necessary to update the legal framework to provide a solution to a possible conflict. In this sense, with regard to the hypothetical disciplinary dismissal of a worker refusing to be vaccinated, the judge, in all probability, would declare it inadmissible, because there is no legal basis which would justify the termination of the contract.
The situation would change if the Ministry of Health issued a regulation to administer the vaccine to the whole company or to certain workers, under the Organic Law of Special Public Health Measures, citing reasons of urgency and need. In this case, the workers could not refuse the vaccination, thus privileging the collective interest over the individual right.
Would it be abusive or unjustified to fire an unvaccinated employee?
To date, such a dismissal would be abusive. The employer may not keep an individual in a position because of non-vaccination, but this does not constitute a justified cause for dismissal. As I said, there is no legal basis that would justify termination of the contract.
In my opinion, a company is not the framework within which vaccination obligations should be established. The vaccination strategy (and legislation) is the responsibility of the State and the regional health authorities which, depending on the evolution of the pandemic, will have to take the necessary decisions.
Will an employee be able to attack his company for this reason for dismissal described as “abusive”?
In principle, it is the characteristics of the activity and of the sector that would make it possible to decide. For example, caregivers who have to look after the sick, treat the elderly or any particularly vulnerable person may be warned of the obligation to be vaccinated and be objectively dismissed if they refuse to comply. In this case, the worker would receive compensation equivalent to 20 days’ wages per year worked.
An employee from another sector can obviously attack his company for this reason for dismissal. In this sense, in this case, the judge would very probably declare inadmissible such a reason for dismissal, because, currently, no legal basis justifies such termination of the contract.
Will it be more difficult to find a job if we are not vaccinated?
In terms of health and safety, the Law on the Prevention of Occupational Risks provides that companies can schedule medical examinations, but nothing indicates that employees have the obligation to undergo a certain type of medical treatment to be hired. Vaccines against Covid-19 can therefore not be imposed on workers or future employees, because vaccination is a voluntary act. A priori, it will therefore be possible to find a job without being vaccinated. Nothing currently prohibits it.
Will a refusal to hire for this reason be discriminatory?
Nothing prevents freely and spontaneously including this type of information in a CV. This can however cause certain problems for the company because if the candidate vaccinated is hired and the one who is not is rejected, we can think that there has been discrimination; situation prohibited by our legal system. On the other hand, because this information is sensitive, special measures must be taken with regard to data protection, and the CV should be destroyed at the end of the selection process. Failure to comply with this instruction could have serious financial consequences for the company.
In any case, requiring vaccination to gain access to a job would be discriminatory, so no company can and should include this condition in job offers.
Vaccination and employee in Spain: what are your rights?
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