The effectiveness of vaccination against COVID-19 has increasingly become more apparent when compared to other measures as echoed in the World Health Organization's (WHO) statement issued on 17 May 2022, "Vaccination has been shown to contribute to reducing deaths and severe illness from COVID-19". The question here is whether mandatory vaccination is legally valid and enforceable.
In Thailand, there are no cases or rulings that would suggest vaccine mandates are legal in a country where vaccination is still voluntary. This context poses a question of whether an employer can order their employees to be fully vaccinated and to what extent. Can the employer regard this order as lawful and fair so that their employees must strictly comply with it? Without defined laws and government policies to provide clarity on this issue, whether the requirement by employers for employees to be vaccinated is lawful and fair will likely depend on a number of factors.
Recently, there have been interesting cases on the points above in other countries. Australia's Fair Work Commission ruled in the case of a vaccine mandate implemented by a private sector employer in the mining industry which stated that this mandate would be legally enforceable, given consultation requirements are met in accordance with the Work Health and Safety Act 2011 (NSW). The Commission acknowledged that the employer faced a difficult situation given that the workers are unable to work from home and, by nature of the work, come into close contact with other workers at work. Interestingly, the relevant parties have accepted the following facts which led to the Commission's decision:
i.
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All COVID-19 vaccines currently available in Australia are effective at preventing symptomatic infection.
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All COVID-19 vaccines substantially reduce the risk of serious illness or death.
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All COVID-19 vaccines are safe and any adverse effects are usually mild. There is a much higher risk of developing serious complications and dying from acquiring COVID-19.
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While other measures such as mask wearing and social distancing are demonstrated to reduce the transmission of COVID-19, the effectiveness of these measures depends on people applying them consistently or correctly. They do not provide a substitute for the constant protection offered by vaccines, nor do they reduce the risk of developing serious illness once somebody acquired an infection.
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v.
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Even with high vaccination rates in the community, COVID-19 will remain a significant hazard in any workplace in which people interact or use common spaces.
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For Thailand, current law and government policies are silent on mandatory vaccination and there has not been any court rulings providing any insights to date. In this context, the aforementioned Australian ruling is useful for Thai employers because it highlights key rationales of what make the employer's order for mandatory vaccination fair and justified. These rationales could serve as references and considerations for Thai employers when considering implementing mandatory vaccination in the workplace. While caution should be taken since it is an Australian ruling decided under Australian law and Thai courts do not follow rulings of foreign courts, the facts underpinning the Commission's decision provide insights into the fundamental ideas of what could make mandatory vaccination justifiable and, in this context, relevant. However, as mentioned earlier, circumstances vary from one employer to the next due to the nature of the industry or type of work, and therefore not all employees will be working closely with one another unlike the Australian case which made social distancing impossible. Some employees may also have justifiable reasons for not getting vaccinated, e.g., religions or health reasons. Having said that, the facts from the Australian ruling could provide key defenses for Thai employers in similar circumstances.
Ultimately, it is important that employers exercise caution when implementing the rules of returning to work, particularly in regards to mandatory vaccination. Employers will also need to be mindful of discrimination risks in relation to any vaccination policy or data privacy when collecting vaccination status, particularly as Thailand's Personal Data Protection Act is coming into effect in June 2022. If appropriate, employers may consider alternative measures to mandatory vaccination which may still help ensure the health and safety of the workplace, such as requiring all employees to take and submit weekly negative Antigen Test Kit results to the employer before entering the workplace.