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August 26, 2021

Workplace Reopening: Mandates and Other Safety Measures under Thai Law

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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.

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