You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

August 26, 2021

Workplace Reopening: Mandates and Other Safety Measures under Thai Law

Subscribe to Updates

Around the world, COVID-19 is continuing to threaten the health of millions, interrupt daily life, and throttle business activity. In Thailand, the latest wave of infections has been more intense than any since the beginning of the pandemic, and many businesses have been forced to close down once again. There are reasons for hope though—chief among them the increasing pace of vaccinations. Not only are the vaccines effective at preventing serious health issues, they are helping keep both employees and customers safe in business settings so that commerce, trade, and tourism can resume once again.

Many in Thailand have already been vaccinated, and struggling employers are looking ahead to safely resuming full business activities, from reopening offices for employees who have been working from home, to welcoming customers and clients back to an environment that minimizes the risk of COVID-19 exposure.

In anticipation of such a return to business at full capacity, many Thai employers are taking note of companies and organizations overseas boosting COVID-19 safety in workplaces by mandating vaccines and other measures, and asking whether such mandates could be imposed here in Thailand.

The main legal concept to consider here is the provision in the Labor Protection Act B.E. 2541 (1998), which authorizes employers to issue “lawful and just” orders to employees. For an order to be “lawful and just,” it must be proportionate to the circumstance. In the current context of the COVID-19 pandemic, employers can refer to the Communicable Diseases Act B.E. 2558 (2015), as well as other local regulations, to provide grounds when asserting that their risk-mitigation orders are proportionate, lawful, and just.

It is doubtful that a Thai court would rule that the circumstances we find ourselves in now would justify an employer requiring employees to be vaccinated, but this legal standard can be applied to other actions as well. Employers should consider current workplace conditions and all other aspects of the situation on a case-by-case basis to determine whether their order is proportionate, lawful, and just. A number of questions can help clarify the acceptability of a workplace requirement minimizing the risk of COVID-19 exposure or transmission. For example:

  • Is there a government regulation or announcement determining high-risk conditions that supports an employer’s assumptions (of a real risk that is likely to have adverse effects if not handled correctly)?
  • Are there reasonable grounds to believe that an employee is infected with COVID-19?
  • Is there a high possibility of the virus being transmitted in the workplace by the employee in question?
  • Are there other solutions that could remove the risk (e.g., having the employee work from home or in isolation, etc.)?

When all of the relevant questions are considered, an employer may issue orders to certain employees to safeguard health and safety in the workplace, and if the employees violate these without reasonable cause, the employer may prohibit them from entering the workplace.

As mentioned above, the Communicable Disease Act has been one of the key pieces of legislation enlisted in the fight against the pandemic. When there are reasonable grounds to suspect that a dangerous or communicable disease is prevalent in an area, authorities may require infected or high-risk persons, contacts, and carriers to undergo medical examination or treatment—including immunization. The authorities may also issue a written order instructing any person to carry out these actions.

Therefore, it is possible that an employer could be ordered by a communicable disease control officer to proceed with requiring employees to be vaccinated. If that were to occur, it could support the idea that the employer’s order is “lawful and just,” as the employer would face penalties for failing to comply and would thus be justified in taking disciplinary actions to fulfil their duty under the officer’s order. Similarly, if the officer’s order is actually for all persons in the area of a workplace to be vaccinated, an employer may also then require the relevant employees to be vaccinated accordingly.

Mandating vaccination for employees in the absence of such an order could be problematic as an employee could challenge the mandate as not “lawful and just.” The grounds for this argument lie in the constitution itself. Sections 28 and 47 of the constitution provide that “a person shall enjoy the right and liberty in his or her life and person,” that “a person shall have the right to receive public health services provided by the state,” and that “a person shall have the right to the protection and eradication of harmful contagious disease by the state free of charge as provided by law.” The constitution does not, however, impose any duty to be vaccinated against one’s will. Thus, forcing an employee to undergo vaccination against his or her will could put an employer at risk of litigation and liability.

However, focusing on the viability of (probably off-limits) vaccine mandates and other workplace orders to prevent the spread of COVID-19 may not even be the best approach for employers. After all, if 100% vaccination is the optimal scenario, the most realistic way to attain this is through all the employees consenting voluntarily to be vaccinated. Thus, good relations with the workforce—in this case facilitating employees’ access to vaccines and emphasizing the importance of getting vaccinated—are likely the best route to obtaining high vaccination rates.

In addition, employers can require observance of standard COVID-19 safety precautions in the workplace, such as masks, social distancing, hand washing, good ventilation, and other hygiene precautions to add a layer of protection and minimize the threat of COVID-19 transmission. Mandating technology use to minimize or even replace face-to-face or physical contact is also possible, and workplaces and customer contact areas could be rearranged to prevent or limit crowding.

While the background discussed above should provide employers with a general guide to the position Thai law takes on this subject, employers can also seek specialist opinions for advice tailored to their specific circumstances. Through the implementation of policies and practices that are flexible, supportive of employee morale and health, and vigilant against any future onset of employee illness, employers will be able to help their businesses get steadily back to normal.

Related Professionals

Practices

Dispute Resolution and Litigation

Employment

Location

RELATED INSIGHTS​ 

August 23, 2021
Since July 13, 2021, the Thai government has issued a series of resolutions offering relief measures for persons insured under sections 33 (regular employees), 39 (former employees still paying contributions to the SSO) and 40 (freelancers) of the Social Security Act B.E. 2533 (1990) (the SSA) who have been affected by the COVID-19 prevention measures under the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005), including the business closures required in some provinces. The latest cabinet resolution extends relief measures to SSA-insured persons in 29 provinces designated as maximum control areas (or “dark red” provinces). The provinces are grouped into three categories based on when they received that designation (which, in turn, impacts the duration of the relief which they receive): Two types of relief measures have been announced—one for parties under section 33 of the SSA, and one for parties under sections 39 and 40.   Section 33 (Regular Employees) Monetary assistance is available for Thai nationals insured under section 33 of the SSA (and their employers) engaged in the following business activities: Administrative and support activities Arts, entertainment, and recreation Automotive repair Construction Food and accommodation Information and communication activities Professional activities in science and academia Services Transportation and storage Wholesale/retail Employers must submit an application to the Social Security Office (SSO) through the online portal (www.sso.go.th/eservices) in order for them and their employees to receive the assistance payments. Each qualifying employee receives THB 2,500 per month if they are registered with the SSO within the deadline, while registered employers receive THB 3,000 per qualifying employee, up to a maximum of 200 employees (i.e., THB 600,000), as summarized in the table below.   Section 39 (Former Employees Still Paying SSO Contributions) and Section 40 (Freelancers) THB 5,000 assistance payments are available for Thai employees insured
Read More
August 23, 2021
The title of a video game is likely one of the most valuable assets that a game developer holds. Registering a game title as a trademark secures exclusive rights over that title and prevents third parties from using it for games or related goods or services of their own. However, whether a game title is descriptive of the computer game is an issue that has come up repeatedly in Thailand with applications to register video game titles as trademarks. According to current practice, the trademark registrar and the Board of Trademarks at Thailand’s Department of Intellectual Property (DIP) do consider a game title to be descriptive of a computer game, regardless of whether the title is related to the actual features or characteristics of the game. In a recent case, a mobile game developer decided to mount a challenge to one such rejection of a video game title trademark application. The developer, which has brought many popular mobile games to the global market, had submitted a trademark application for the title of their mobile game “Clash Royale” in classes of computer game software (Class 9) and electronic games (Class 28). This application was rejected by the registrar and the Board of Trademarks for non-distinctiveness. The registrar and the board decided that the words “Clash Royale” can be interpreted to mean “battle of the kings.” In connection with goods in the applied-for classes, these words describe the nature of the goods as “games related to battles of the kings” and therefore are not registrable because they do not exhibit the distinctiveness required by Thailand’s Trademark Act. The game developer enlisted Tilleke & Gibbins to appeal the board’s decision to the Intellectual Property and International Trade Court (IP&IT Court), arguing that the mark “Clash Royale” is inherently distinctive and not directly
Read More
August 23, 2021
Ho Chi Minh City has been locked down for months in an effort to fight the challenging fourth wave of the Covid-19 pandemic. We explore the various options available to employers to cut labor costs, as well as government relief measures to support both workers and employers.
Read More
August 20, 2021
On August 19, 2021, the Ho Chi Minh City Police Investigation Department shared that they are investigating a case of copyright and related rights infringement under the decision to prosecute a criminal case related to the website Phimmoi.net. This is the first time Vietnam’s police force has prosecuted a case of copyright infringement.
Read More