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Can employer imposes vaccination mandate against EMPLOYEE?
Currently, the COVID-19 situation in Thailand aggressively continues to intensify. The number of the infected keeps increasing by more than 17,000 people per day and our only solution (and hope) to heal the pandemic is vaccination. Although it is understandable that employers’ mandate requesting their employees to get vaccinated is to reasonably prevent them from infection, and also eventually safeguard the employers’ businesses, it is arguable whether such mandate is legally enforceable and is considered a fair order of the employer under Thai laws.
Lawful Order of Employer
No one would object that extorting the employees to get vaccinated by force would be a criminal offence and a breach of the Constitution of Thailand. Nevertheless, in our view, such mandate would be enforceable and considered a fair order if the nature of the employer’s business could be endangered from the infection – in comparison to the Supreme Court’s precedent no. 4965/2557 which ruled that the employer’s order to terminate the employee because such terminated employee refused to get the drug test after being found of illegally using the drug was enforceable and legally fair. Moreover, the Thai government’s agendas prioritize the vaccination in order to maximumly immunize the society and eventually lead to the economic improvement.
There is no Court’s precedent adjudicating that the termination of an employee who refuses to comply with the employer’s mandate, i.e., refusing to get vaccinated is considered as a fair or unfair termination yet. However, in our view, such termination would be considered a fair termination if the mandate is, too, considered a fair order of the employer, provided that, however, the employee reasonably rejects to get vaccinated due to their illness or provides other reasonable grounds of rejection.
In general, the termination of employment would trigger the terminated employee’s right to receive the severance pay (based on an interrupted working period) which is equivalent to 30 days to 400 days of wages. However, depending on the nature of the employer’s business activity, refusing to get vaccinated could be considered a serious violation of the employer’s order where no written warning is not required as stipulated under Section 119 of the Labour Protection Act. As a result, the employer shall not be required to pay the severance pay to the terminated employee – based on the Supreme Court’s precedent no. 1969/2560 which ruled that the terminated employees who seriously violated the employer’s order by smoking in the prohibited area which could have caused the fire and damaged the employer’s business.
In any events, it would be prudent for the employers to amicably discuss and explain the vaccination benefits to their employees, which mainly for the employees themselves and thus also preventing their family members from being infected.