Employees’ vaccination right
According to the current Vietnamese law, vaccines can be used voluntarily or mandatorily [1]. In particular, COVID-19 epidemic is not on the list of infectious diseases, scope and recipients of compulsory vaccines and biological [2], which is regulated by Ministry of Health. Therefore, the current COVID-19 vaccine is still being voluntarily implemented.
Because of the fear of vaccines’ effectiveness, wait-see attitude for good vaccines or the voluntary characteristic of COVID-19 vaccine, there is a large number of employees refusing to be vaccinated. It leads to the fact that unvaccinated employees could do harm to vaccinated employees when working together.
On 15th September 2021, the Steering Committee for COVID-19 Prevention and Control of Ho Chi Minh City issued Decision No. 3328/QD-BCD on promulgating Safety Standards for Business Operations in fighting and preventing COVID-19 in Ho Chi Minh City (“Safety Standards”).
Accordingly, employees must have at least “COVID Green Card (limited scope of activities)” [3] or “COVID Green Card”[4] (for some other departments) in order to get back to work. In other words, if employees want to return to work, they are required to complete at least 01 dose (for 02 dose-vaccine). The question is, which consequences the unvaccinated employees would be facing with when they return to work? How will employers respond to this situation? And can employers fire their unvaccinated employees?
Employers’ right to fire unvaccinated employees
Unvaccinated employees may face many problems when returning to work. They not only waste time, money to regularly do tests for safety reasons, but also cause lots of awkwardness for their employers and colleagues; or even they may not be allowed at the workplace because they have not been vaccinated.
Currently, around the world, enterprises also have employed different treatment for unvaccinated workers. For example, “a Switzerland bank, Credit Suisse bank, has asked all U.S unvaccinated employees to work from home”[5]; “Facebook and Google require employees to be vaccinated before returning to work”[6]; or even they can fire employees if employees have not been vaccinated like “American news agency CNN has fired 03 employees for coming to the office without getting vaccinated against COVID-19″[7]. Vaccination is now compulsory for health care, home care or emergency workers in France. A French court has recently ruled that the employees would face suspension or are not permitted to go to work if they have not been vaccinated, but they cannot be fired[8]. How could this problem be solved in Vietnam?
According to the current Vietnamese law, an employer may dismiss an employee for disciplinary reasons in the following circumstances:
- employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace; or
- employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations; or
- employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved; or
- employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Although the Safety Standards was issued, it is only applied for enterprises in Ho Chi Minh City. Moreover, there is no treatment if governing subjects would violate this Safety Standards.
Currently, in Ho Chi Minh City, in particular, and in Vietnam in general, employers cannot fire their employees that have not been vaccinated. However, this issue may be amended when state organizations are required to enhance higher vaccination rate over the population.
[1] Clause 2 Article 27 Law on Prevention and Control of infectious disease 2007.
[2] Article 2 Circular 38/2017/TT-BYT Introducing Lists of infectious disease, scope and recipients of compulsory vaccines and biological.
[3] “COVID Green Card (limited scope of activities)”: is a card issued for people who are diagnosed with negative SARS-CoV-2 test (rapid test or RT-PCR) for the industries that are required to test; complete at least 01 dose for 2-dose vaccine or infected with COVID and already recovered; and have no close contact with F0 within 14 days.
[4] “COVID Green Card): is a card issued for people who are diagnosed with negative SARS-CoV-2 test (rapid test or RT-PCR) for the industries that are required to test; complete 02 dose for 2-dose vaccine or 01 dose for 01 dose-vaccine, or infected with COVID and already recovered; and have no close contact with F0 within 14 days.
[5] See “Credit Suisse tells unvaccinated U.S staff to work from home”, https://www.reuters.com/business/credit-suisse-tells-unvaccinated-us-staff-work-home-memo-says-2021-08-25/ , last access on 24th September 2021.
[6] See “Facebook and Google require employees to be vaccinated before returning to work”, https://congnghe.tuoitre.vn/facebook-google-yeu-cau-nhan-vien-tiem-chung-apple-khuyen-khich-2021072907121221.html , last access on 24th September 2021.
[7] See “CNN fires unvaccinated employees for going to office”, https://www.bbc.com/news/world-us-canada-58112125 , las access on 24th September 2021.
[8] See “Unvaccinated French health care workers face suspension”, https://abcnews.go.com/Health/wireStory/unvaccinated-french-health-care-workers-face-suspension-80029160 , truy cập lần cuối ngày 25.9.2021.