The employer forced all employees to get vaccinated against COVID-19 by forcing them to do so and threatened that “if anyone refuses to get vaccinated, they may be fired.” Can the employer fire employees in this case?
This issue is also a question that has been asked a lot. From the current situation, the number of infected people has been increasing continuously. And there is still no sign of it decreasing or that it will definitely return to normal in the next two months. Unless the number of the population (both Thais and foreigners living in Thailand) has been vaccinated at least 60-70% or more.
The impact is widespread, causing many businesses to be affected by COVID. Vaccination has become something that many companies want very much to ensure that the business can continue to operate and conduct transactions. That is why many companies or organizations have come out to ask for cooperation from all employees to get vaccinated so that everyone will have immunity and the company and organization will be able to continue operating.
The question is, if an employee refuses to get vaccinated, can they be fired?
This issue seems like the employer wants to force all employees or staff to get vaccinated to prevent COVID-19. If viewed objectively, it may show the concern that the employer has for the employees. But if the employees do not want to get vaccinated, do they have to be fired? Is it too harsh?
“The employer is forcing the employees to get vaccinated against COVID-19. This is coercion, with no choice for the employees or staff.”
Legal Reference: If the employer’s forced vaccination means the use of force, where the employee does not consent, this is probably not allowed because it is considered a violation of the right to the body according to the constitution. There is no law that requires the employer to do this. And if it is done, it is against the criminal law and is a violation of the employee’s rights, and may have to pay damages to him.
The issue of vaccination at this time (until May 31, 2021) is still an option for Thai people, including foreigners working in our country, whether they choose to get vaccinated or not. Therefore, it is incorrect for employers to bring up the law to claim that all employees must be vaccinated or else they will be guilty.
“Employees must have a choice when it comes to vaccination.”
Because some people do not get vaccinated, the reasons for that employee must be considered, such as health reasons, chronic diseases, vaccination costs, or other reasons for refusing to get vaccinated, etc.
So what are some reasons why employees might need to get vaccinated?
In the event of an outbreak in a factory, business, or nearby location, employers have reasonable grounds to order employees in the factory or company to get vaccinated to build immunity for employees to prevent the spread of COVID.
These orders are lawful. However, this justification may have to consider many aspects, such as the outbreak and infection in the workplace, the type of business, the job position, the nature of each employee’s work, and the risk of infection, or the opinion of the officer or doctor, etc.
“If employees do not get vaccinated, what will be the consequences in this case?”
If the order for employees to get vaccinated is a lawful order and is fair to the employees, and the employees do not comply, the employer may refuse to let them work or may punish them disciplinaryly by issuing a warning letter, suspending them from work for 7 days without paying them wages, or may terminate their employment and pay them compensation or other money according to their rights.
But some companies threaten that if you don’t get vaccinated, you will be fired without compensation?
In the case of termination without compensation, by raising the issue that some employees did not get vaccinated against COVID-19, it is considered wrong.
Because in this case, the employee has the right to choose whether to get vaccinated or not. If the employee gives a reasonable reason, he has the right to choose. Therefore, termination in this case is considered an unfair termination. The company must pay compensation to the employee.
According to the compensation payment criteria, Section 118 of the relevant law requires employers to pay compensation to employees who are terminated as follows:
- Employees who have worked for 120 days but less than 1 year are paid no less than 30 days’ wages.
- Employees who have worked for at least 1 year but less than 3 years are paid no less than 90 days’ wages.
- Employees who have worked for at least 3 years but less than 6 years are paid no less than 180 days’ wages.
- Employees who have worked for at least 6 years but less than 10 years are paid no less than 240 days’ wages.
- Employees who have worked for 10 years or more but less than 20 years are paid no less than 300 days’ wages.
- Employees who have worked for 20 years or more are paid no less than 400 days’ wages.
If the employer does not pay compensation or advance notice, it falls under the category of “unfair dismissal”.
But if the company is going to terminate the employee without paying any compensation, it must consider whether the employee’s actions of not following the order to get vaccinated are a serious and lawful failure to comply with the employer’s order.
Refer to Section 119 of the Labor Protection Act because the Labor Protection Act does not only protect the rights of employees but also takes care of employers, especially in cases where the employer has suffered serious damage from the intentional actions of the employee, whether it is pretending not to finish work as scheduled or stealing the employer’s property or even attacking the employer.
- Corruption in office or intentionally committing a criminal offense against the employer
- Intentionally causing damage to the employer
- Negligence causing serious damage to the employer
- Violating work regulations and the employer has already given a written warning, except in serious cases where the employer is not required to give a warning.
- Abandoning duty for three consecutive working days without reasonable cause and
- Sentenced to imprisonment according to the final judgment. However, if the employee commits an offense for the reasons mentioned above, when the employer terminates the employee, they do not have to pay compensation to the employee, but must specify the reason for the offense in the termination letter.
In the case of not following the order to get vaccinated, it is an offense under Section 119, Clause 4, for which the employer has the right not to pay compensation.
Conclusion
Employees have the right to choose whether or not to get vaccinated, unless there is a lawful order to get vaccinated, in which case employees must comply (unless there is a good reason not to get vaccinated).
For termination, if the termination of the employee does not fall under any offense, according to Section 119 of the Labor Protection Act, the employer must pay compensation. However, if it falls under a serious case, there is no need to pay. The termination must state the reason to the employee at the time of termination, according to Section 119, last paragraph.
However, I would like you to look at the positive side of employers providing vaccines for us because getting vaccinated is a way out, not just for us, but also for our organizations and our country.
The faster we get vaccinated and the more people are vaccinated, the lower the number of infected people will be and the death rate will be lower. Confidence in investment or international tourism will return, allowing businesses in the country to resume operations and continue moving forward.
thank you
Information from the Ministry of Justice and the Office of Labor Protection and Welfare
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