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Wednesday, June 29, 2022

The New Costa Rica Covid 19 Executive Orders

The Costa Rica government has issued several decrees (Executive Orders) or Decretos Ejecutivos in spanish, two of which have sparked legal interest in the subject of vaccinations and the use of face masks in public places.

The first executive order is Decreto Ejecutivo No. 43543-S. This administrative law encourages government and private institutions NOT to apply workplace sanctions, such as job termination, against persons that do not have a complete set of Covid 19 vaccinations.

The government requests the National Committee on Vaccinations to guide it as to which government employees can be affected by sanctions of “work termination” if they do not comply with the rules that are currently in place.

The government also encourages, but it does not specify who, -one would surmise they are addressing the Committee-, to perform technical studies that show the effects that compulsory vaccination has on that group of the population that has indeed been vaccinated, including evidence from other countries.

If this wording seems strange and confusing, then you are not alone because it seems to imply that the existing rules of vaccination remain in place. It appears the government is asking whether there is a significant difference between those vaccinated and those that have opted not to be vaccinated before it proceeds with more definitive measures relating to vaccination.

The second executive order is Decreto Ejecutivo No. 43544-S and it specifically regulates and modifies a previous E.O. from 2021 which set in place the forced use of masks as a health prevention measure back when the pandemic started.

It states that, as of May 11th, the only persons that are obligated to use masks are first line health care workers from both government and private health care institutions and those persons seeking health and medical services at these institutions. Everyone else is exempt from the obligation of wearing masks.

In other words, there are two distinct issues:

  • The issue of vaccination
  • The obligation of wearing masks in private or public closed areas.

Many questions will arise from these issues, especially in the workplace and in commercial venues.

Can an employer force an employee to get further vaccines or wear a mask at the workplace? The answer is no because we are all protected by the principle of freedom, which means that we are free to do anything that is not prohibited by a specific law.

Since the obligation to wear a mask was established by an E.O. and that specific E.O. has been modified, then no one can force another person to wear a mask, except for those front line health care workers which the decree mentions.

The vaccination issue is not as clear because this new decree simply “encourages” employers not to terminate those who wish not to be vaccinated or increase their set of vaccines.

An employer can force an employee to use preventive equipment for health and safety purposes, such as a work helmet, special shoes and many other protective items. Many employers see the continued use of face masks as a good preventive measure that can help in avoiding unnecessary sick days for their employees which can end up being very costly for the company. On the other hand, some employees feel the mask is an intrusion into their freedom.

Can a merchant force customers to wear a mask within the premises? Here there is a different issue which is the private prerogative of the merchant to operate his business as he sees fit versus the public rights of the customer, especially since all businesses require a public permit to operate.

Furthermore, can the merchant force me to apply alcohol on my hands, which many establishments seem to do? The legal answer is no, the merchant cannot force me to wear a mask or apply alcohol and would probably be subject to a lawsuit and/or an administrative process for the misuse of his business permit if he tries to do so.

Logic tells us that most businesspeople do not want to create obstacles for their customers but it is possible that out of an abundance of caution, some merchants may wish to establish these rules.

Some constitutional law experts consider these new executive orders to be unconstitutional because Costa Rica law requires that any law be based on technical studies which justify it and they argue that no such studies exist specifically for the purpose of lifting the obligations of vaccination or the use of a face mask.

It is clear the decrees are poorly worded as they are vague, in a time and in an area where we need as much clarity as possible.

It seems that most people out of pure common sense will continue to wear their masks and get their vaccines for a while at least until the uncertainty of Covid 19 diminishes. Most of the problems that may arise will probably be caused by persons who have very strong feelings one way or another about these important issues.

For example, a viral video showed how a public bank customer was initially refused service unless he donned his face mask and how this customer fought back with the argument that the new decrees eliminated those obligations and this being a government bank, they had to service him and since his money was in the bank he would not leave until he was helped.

It does seem certain that we are much more aware and proactive as to our health issues, especially in areas such as food safety, airborne diseases, water purity and many others. Knowing your rights and obligations will become increasingly more important in a time when, on some extreme issues, it is not so easy to know what the right thing is and what is my legal obligation.

We would love to hear your comments and questions, you can reach attorney Jorge Montero at [email protected]

Lic. Jorge Montero B.
Attorney At Law
[email protected]
Tel / WhatsApp: 506- 8384- 2246

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