Can an employer force an employee to be vaccinated against COVID-19 or to inform the employer of his/her vaccinated status?

Amidst the current COVID-19 outbreak, many employers are hoping that their employees are able to get a COVID-19 vaccination in the near future so that their businesses can return to normal as soon as possible. However, the question is whether the employer can actually force the employee to be vaccinated or to inform the employer of his/her vaccinated status?

This question concerns many levels of law in Thailand. For example, under Section 28, paragraph one of the Constitution of the Kingdom of Thailand, it is recognised that a person shall enjoy the right and liberty in his or her life and body. Considering this fundamental right, strictly speaking, it means that the employer should not be able to force any employee to be vaccinated since it directly intervenes both the health and body of the employee. By the same reason, the employer should also not be able to impose any disciplinary action on any employee who refuses the employer’s order to be vaccinated against COVID-19.

In terms of labour laws, the law is silent on this matter. Having said that, based on several Supreme Court’s decisions, the Thai labour court accepts that to some extent, an employer’s order given to the employee is considered as the exercise of managerial power which is within the employer’s authority to organise and operate its business, and thus valid and enforceable. The key consideration is that the said employer’s order must be fair and legitimate, and not be issued with the aim to harass the employee. If the said order is considered fair and legitimate, the employee will have to comply with the said order; and the employer will be able to impose appropriate disciplinary action on the employee in accordance with the work rules for failing to comply with such order, including but not limited to termination of employment for cause. This is because Section 119 (4) of the Labour Protection Act BE 2541 (1998) provides, in essence, that the employer may not pay severance pay to the employee whose employment is terminated on the grounds of him/her violating the work rules, regulations or any lawful and fair orders of the employer after a written notice has already been given by the employer, provided that such written warning shall be effective for a period not exceeding one year from the date of the violation; except for a serious case, for which no warning is necessary.

Should the employer apply said concept of a fair and legitimate order to this COVID-19 circumstance, the employer will have a burden of proof to illustrate why its order to force the employee to get a vaccine is fair and legitimate. In this regard, it will be difficult for the employer to reason that it is an absolute necessity to receive a COVID-19 vaccination because there can be a variety of arguments against this from the employees, such as: the creditability and choices of vaccines provided by the Thai Government; the minimal risk arising from the employer’s type of business; and the working location or duties and responsibilities of the employee, including why the said order should outweigh the fundamental right of the employee’s body as recognised under the Constitution of the Kingdom of Thailand.

Consequently, in order to avoid serious disagreement and dispute from this inconclusive issue, the employer is strongly recommended to educate and encourage the employees to receive a COVID-19 vaccine rather than to use a coercive plan. At the same time, the employer may consider preventing an employee who does not get a COVID-19 vaccine from entering the employer’s premises, if that is feasible, for the safeguard of other employees’ health and hygiene.  

As to the issue of whether or not an employer can collect data, or force the employee to inform the employer, concerning whether or not the employee has been administered with a COVID-19 vaccine, please note that the Personal Data Protection Act BE 2562 (2020) (the “PDPA”) is not fully effective at present as it has been postponed for another year, causing it to be fully effective as of 1 June 2022. In such regard, according to Section 26 of the PDPA, data concerning health is considered as ‘sensitive personal data’. Once the PDPA becomes effective, in order to collect the sensitive personal data (i.e. information pertaining to COVID-19 vaccination status, in this context), the employer has to obtain explicit consent from each data subject (i.e. employee) or otherwise be able to rely on the exemptions provided under the PDPA.

This is intended merely to provide a regulatory overview and is not intended to be comprehensive; it is NOT a provision of legal advice. Should you have any questions on this or on any other areas of law, please do not hesitate to contact the following:

Chanakarn Boonyasith
Partner

Pitchabsorn Whangruammit
Attorney-at-Law