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​ 

October 30, 2023
A Resounding Victory The last days of October brought some excitement for one of the leading pharmaceutical companies in the world, Novartis, when its patent litigation case in Vietnam against a local generic manufacturer, which had stretched over more than eight years, finally came to an end. The background of this case is quite simple. Novartis was the owner of a patent protecting the active ingredient vildagliptin, which was commercialized through its Galvus® product, a medicine used to treat type 2 diabetes. In 2015, the company found that a drug manufacturer in Vietnam’s Binh Duong province on the outskirts of Ho Chi Minh City was producing a medicinal product containing the vildagliptin active ingredient—an infringement of its patent. Novartis first submitted a request to the Ministry of Science and Technology (MOST) to apply administrative sanctions on this infringer. Subsequently, the MOST Inspectorate concluded in July 2015 that the defendant had committed patent infringement and ordered them to stop producing the infringing drugs and recall them from the market. However, the defendant did not comply with the conclusion, and sought an appeal while it continued to produce the infringing medicine. Realizing that administrative sanctions were not strict enough to deter the defendant, Novartis continued to protect its legitimate rights and interests by initiating a lawsuit at the provincial court where the defendant was headquartered, Binh Duong. Novartis claimed that the defendant had infringed the patent and requesting the defendant to compensate for damages at the highest level allowed by law, pay attorney fees, and publicly apologize to Novartis in specialized newspapers. This began a long journey full of challenges that finally ended with the second appellate judgment declared by the High People’s Court of Ho Chi Minh City on October 17, 2023. The court accepted all claims raised by the
Read More
October 20, 2023
On September 18, 2023, the Vietnamese government issued Decree No. 70/2023/ND-CP (“Decree 70”) amending and supplementing certain provisions of Decree No. 152/2020/ND-CP (“Decree 152”), which regulates foreign workers working in Vietnam and the recruitment and management of Vietnamese workers working for foreign entities in Vietnam. While Decree 70 relaxes some conditions relating to foreign workers, the general goal of protecting and prioritizing domestic labor over foreign labor remains. The major changes introduced in Decree 70 are summarized below. 1. Amended Definitions and Requirements for Worker Classifications Decree 70 introduces several changes to the requirements for foreign workers to be classified as “experts” and “technical workers.” Under Decree 152, foreign workers needed to hold bachelor’s degrees or receive training directly related to their intended job positions in Vietnam. However, under Decree 70, experts are only required to have a university degree or higher and at least three years of relevant work experience suitable for their intended positions in Vietnam. Similarly, it is no longer necessary for technical workers to have training in a specific technical field to be eligible to work in Vietnam. Instead, a technical worker is defined as someone who has undergone at least one year of training and possesses at least three years of working experience suitable for their intended job position. Additionally, Decree 70 clarifies and expands the scope of the term “executive director”. Accordingly, an executive director can be (i) the head of a branch, representative office, or business location of an enterprise (which helps clarify the previous definition of “executive director” in Decree 152); or (ii) an individual who oversees at least one field within an agency, organization, or enterprise while being under the direct supervision of the head of that agency, organization, or enterprise. 2. Application for Work Permit The general procedure for
Read More
October 12, 2023
Myanmar has made important amendments to its minimum wage framework by increasing the minimum compensation for workers in both the public and private sectors. Background In May 2018, the National Committee for Setting the Minimum Wage determined that all workers in Myanmar should receive a minimum wage of MMK 4,800 per day (approx. USD 2.29), equivalent to MMK 600 per hour for an eight-hour workday. This rule applied to all workers, without differentiation in location or job. Government Workers and Organizations In September 2023, the Ministry of Planning and Finance announced that daily workers in government departments and organizations are entitled to receive an additional benefit of MMK 1,000 on top of their existing daily wage, which was already MMK 4,800. Consequently, they could earn a total of MMK 5,800 per day for eight hours of work. Private-Sector Workers On October 9, 2023, the national committee announced an increase of minimum wages for employees in the private sector. According to Notification No. 2/2023, workers at private-sector employers with more than 10 employees are now entitled to minimum compensation of MMK 5,800 per day (approx. USD 2.77)—an additional MMK 1,000 per eight-hour workday over the previously established minimum wage. The changes took effect on October 1, 2023. For more details about these changes, or any aspect of employee compensation or employment law in Myanmar, please contact Tilleke & Gibbins at [email protected].
Read More
August 25, 2023
Michael Ramirez, a counsel in Tilleke & Gibbins’ dispute resolution department, has contributed an article to a series on contractual terms in Asia from the Asian Business Law Institute. Previous articles in the series have looked at administrative and tax requirements and contract breach and remedy under Thai law. The article gives an overview of how extracontractual liabilities are treated under Thai law. It addresses issues related to contract negotiations, no-reliance clauses, entire agreement clauses, and concurrent liability. ABLI, which is based in Singapore, conducts legal research and dissemination in order to provide knowledge, guidance, and recommendations surrounding development of legal systems in Asia. The full article on extracontractual liabilities is available as a PDF through the button below.
Read More