Employment and Labor ARTICLES

Employees' Right to Refuse to Work in the "New Normal" - Solutions for Employers

Employees' Right to Refuse to Work in the "New Normal" - Solutions for Employers

“In early October 2021, Ho Chi Minh City adopted the “new normal” to re-start socio-economic activities that had been decelerated for a long time due to the complex developments of the Covid-19 pandemic. The current vaccination policy allows fully vaccinated workers to return to their workplace based on successful citywide Covid-19 vaccination coverage. This comes as a good sign for many enterprises as they are able to restart after a long period of social distancing. However, vaccination coverage does not guarantee that people will be immune to Covid-19, which is why many employees continue to refuse to work at the company’s office, citing concerns about community infections in the workplace. This is making it difficult for employers to manage and operate their businesses. The concerns of employees are “legitimate” in theory, certain attention is required to thoroughly solve this issue. Hence, this article shall explain what employers should consider before providing solutions to similar cases as mentioned above.”

The right of workers to refuse to work:

According to the Labor Code, employees have the right to “refuse to work if there is a clear risk of harm to life and health in the course of performing work.”

Currently, this is the only provision of labor law that gives workers the right to deny work. Apart from this provision, labor law does not provide any other guidelines. As a result, employee’s right to refuse to work is based on the risk to employee’s life and health in the course of performing work. However, current labor law does not define what “clear risk” is to form a basis for denying work. It is understandable since this factor is heavily dependent on the parties’ individual assessments and subjectivity, and it is difficult to determine whether their work truly endangers their life and health.

Normally, such risks are considered “clear” when they are visible, such as natural disasters, fires, epidemics, and so on. In such a case, employees can be certain that if they perform the work involved in employment, their health and life would be threatened.

Is “risk of covid-19 infection” considered a “clear risk”?

The critical analysis outlined in this article shows that the following factors should be considered to assess the risk of covid-19 infection as a “clear risk” to workers in the event of returning to work.

  • Is the office or office area located in a “green zone” or a “red zone”?

     Normally, areas where it is allowed to work are now designated as “green zones”, indicating that the epidemic has been brought under control.

  • Have all employees in the company been fully vaccinated?

     Currently, in order to return to work, workers must receive at least one shot of the Covid-19 vaccine.

  • Do the building and office regulations apply 5K criteria in accordance with the current epidemic protection regulations?

     Buildings must now implement appropriate criteria for epidemic control, such as green card checks, temperature checks, or PCR tests of visitors for daytime access to the building is also commonly used.

  • Is getting infected with covid-19 a direct threat to one’s life and health? This is probably the most difficult factor to determine because it is dependent on each individual’s health. Close contact does not imply contagiousness, and if the person is infected, it does not imply that the infected person’s health will deteriorate. However, eliminating risk of infection is currently impossible, not only in Vietnam, but globally, because Covid-19 virus changes quickly and there is no vaccine that helps achieve absolute immunity.

Thus, except for the last factor, which still appears to be controversial, the assessment of whether there is a “clear risk” in the top three factors can be identified. By meeting these requirements, it would be unconvincing if workers refused to return to the office because “there is a clear risk of harm to life and health in the due course of performing their work.”

Strategy to deal with employees who refuse to work at the company

  • Taking labor disciplinary action: With labor rules stating that employees must be present at the workplace to perform the work, it is clear that refusal to return to work despite the workplace meeting the criteria of assessment for safe operation to prevent and combat Covid-19, can be considered a violation of labor rules. In such a case, the employer may proceed with disciplinary action against the employee on this basis. In some cases, the employer may take the highest form of disciplinary action, which is dismissal.
  • Unilateral termination of employment contract: The employer may unilaterally terminate the employee’s employment contract if they are absent for 05 consecutive days or more without a good reason despite the workplace meeting the criteria for safety, and the employee not facing travel restrictions. In fact, whether there is a good reason for refusal to work depends on the evaluation criteria of each business in the context of the ongoing epidemic, as well as the circumstances of each individual.
  • Negotiation with the employee: If the employer has no intention or reason to take “severe” measures, negotiation with the employee may be chosen. Depending on the circumstances, the employer may reach an agreement with the employee to find a feasible solution for both parties. For example, the employee may agree to perform some work that can be completed at home for a short period of 1-2 months, and the salary may be adjusted accordingly depending on the individual case. Hence, this option is heavily reliant on the employee’s cooperation.

Currently, the Covid-19 pandemic is still evolving, but radical options such as strict social distancing are no longer as effective as they once were. It is difficult to attain absolute immunity from this pandemic, and employers will only be able to compromise for a limited time with workers who do not return to work. Depending on each employee’s specific situation, the employer may consider using one of the above options to deal with the situation.

The article is based on applicable law at the time noted as above and may no longer be appropriate at the time the reader approaches this article as the applicable law has changed and the specific case that the reader wishes to apply. Therefore, the article is only for reference.

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