Nearshore Americas

Protecting Health Without Violating Anti-Discrimination Laws

The Covid-19 pandemic is more than a biological phenomenon. It is an agent for rapid social and economic transformation. Since the first case was detected in Wuhan, China, the disease has swept across the planet, bringing sweeping changes with it. Governments and employers have responded with a host of new regulations, but they have both encountered tensions between health concerns and anti-discrimination laws.

The “new normal” amid Covid-19 has forced health organizations to modify their protocols to minimize the spread of the virus. Authorities have identified those at greatest risk from the disease. Some of the factors that increase that risk are diabetes, hypertension or high blood pressure, asthma, smoking, pulmonary fibrosis, cancer or advanced age.

Protecting Without Excluding

The International Labor Organization has stressed that employers cannot take any action or decision that discriminates against at-risk individuals. But in countries such as Costa Rica (which introduced a compresensive anti-discrimination labor reform in 2017) discrimination is defined as any action to exclude or individualize a person from the rest of the employees.

This prohibition becomes highly relevant during the pandemic, because if the employee has any of the conditions the health authorities have identified, they must inform their employer and allow them to take proper actions in response.

At first, the organization may ask their employees to inform them if they have any of these conditions. That way, the employer can determine if their job duties need to be modified, or if the employees need special protection to minimize the risk of contagion.

Before the pandemic, asking a candidate or an employee about these conditions would be considered a serious offense and could result in legal claims before the Ministry of Labor or the Labor Court. Additionally, the actions taken by the employer would be reversed on the grounds of discrimination.

On the other hand, labor law in Costa Rica stipulates that employees follow the security and prevention measures adopted by the employer and ordered by the national authorities, which include the provisions ordered by the Ministry of Health.

The “new normal” requires that the authorities, employers and employees take new measures that would previously have been considered irrelevant or unnecessary. However, in the current climate, such measures have the potential to reduce contagion and save lives.

Taking Measures to Save Lives

There is a fine line between discrimination and protection, but individuals must accept the preventive measures introduced at the behest of health authorities. Employers have an obligation to ask their employees about any existing health conditions – although that information must only be used for the purposes of controlling the pandemic. Employers also have a resonsibility to provide the necessary protective equipment and make the necessary adjustments for their staff. If the employees refuse to adopt these new measures, disciplinary actions can be taken because health considerations are above any single individual.

Sign up for our Nearshore Americas newsletter:

Due to the current climate, every person, authority and company must adapt their daily routine to the evolution of the virus. That means that new measures must be introduced, and old habits must be changed.

Juan José Montero

Juan José Montero is Director of BLP in its San José office. He specializes in the practice areas of Labor and Employment and Global Mobility and Relocation.

Montero has participated in multiple due diligence processes allowing multinational companies to acquire a business presence within Costa Rica.

He has also been commissioned to implement several audits and compliance review processes for national companies and has aided in labor judicial processes and coordinated strategies with the firm's labor litigation team, which has attained a highly favorable record in our clients’ favor.

In addition, Montero has coordinated audits, the prevention and management of administrative claims and other processes before the Ministry of Labor, the Costa Rican Social Security Fund and other state institutions.

He has been responsible for analyzing and implementing strategies related to the hiring of expatriates, and the creation of compensation schemes and additional benefits for employees of multinational companies, as well as local firms.

He has extensive experience in handling negotiations at the judicial level, as well as private conciliation processes.

Add comment

Advertisement