On 8 December 2021, claimants brought an amparo action against Decree n. 168-2021-PCM seeking a declaration that the measures provided therein – most specifically a duty to provide proof of vaccination against COVID-19 (at least three doses) for drivers in the private and public transport sectors – are inapplicable to them.
In particular, the claimants submitted that, by imposing unreasonable restrictions upon individuals that are not able to provide proof of vaccination, the measures enacted by the government violate their fundamental right to work.
On 25 July 2022, the Supreme Court of Justice of Peru upheld the claim on the grounds that the challenged measures violate the claimants’ fundamental right to work. First, the Court considered that, despite not ‘‘directly’’ providing for mandatory vaccination, the challenged measures nonetheless imposed an ‘‘indirect’’ duty to do so, as they required workers to provide proof of vaccination (at least three doses). Once established that Decree no. 168 provides for indirect mandatory vaccination against COVID-19, the Court went on to consider that, while the right to work is not ‘‘absolute’’ and that restrictions may be imposed on the grounds of a public interest, it is nonetheless for the Parliament – and not for the government – to provide for possible restrictions which, in any case, must be reasonable and proportionate. With regard to the specific circumstances of the case, the Court considered that “manual” labour, including public and private transport services, cannot be substituted with remote working. As a consequence, even an indirect duty to vaccinate constitutes a violation of the fundamental rights as it does not provide those specific categories of workers – unwilling to get vaccinated – with sufficient “alternatives” to freely exercise their right to work.
Reference: decision no. 05318-2021-0-1801-JR-DC-03.