NL: Vaccination obligation, registration and urgency: what can and is an employer allowed to do?15 September 2021
With more and more office work being done, many employers are grappling with questions about vaccination. Can they actually ask about the vaccination status of their employees and can they adjust their policy accordingly? The newspapers pay daily attention to companies that are trying to find their way in this, such as Leaseplan and KLM and remarkably enough, during the government press conference on September 14, 2021, special attention was paid to this issue. Time for some questions and answers.
Can an employer require its employees to be vaccinated?
The answer to this question is 'no'. Article 11 of the Constitution entitles everyone, subject to restrictions to be set by or pursuant to the law, to inviolability of his body and Article 8 of the European Convention on Human Rights states that every person has the right to make his own decisions. about his physical integrity. In plain language, this means that everyone can decide for themselves what happens to his or her body, whether medical procedures are performed and whether prescription drugs are taken.
Restrictions on this fundamental right are only possible if this is regulated by law. Examples of this can be found, for example, in the Police Act 1993 , which provides that the police may sometimes require a blood test from someone or search someone. There is as yet no question of a legal exception that makes it possible to force employees to vaccinate.
Can an employer ask his employees whether they have been vaccinated or not?
The answer to this question is more difficult. In principle, questions are free. That also seems to be the position of Minister Hugo de Jonge of Health, Welfare and Sport, who answered this question in the affirmative during the press conference of 14 September 2021. However, the question is whether this is so simple.
After all, an employer does not have the right to “process” employee health data. Processing within the meaning of the GDPR also includes the collection of data. Asking the question without writing down the answer (digitally or on paper) does not violate the letter of the GDPR, but in fact leads to the same result. Especially in a small company with few employees.
In addition, an employee is in principle not obliged to provide this type of information, but he or she will often not feel really free to refuse because of the relationship of authority with the employer.
This means that, in our opinion, asking the question may conflict with the requirement of good employment practices. Whether this is the case will depend on the circumstances, in which the necessity and the way in which the question is asked will be of particular importance.
Can an employer register which employees have and have not been vaccinated?
The answer to this question is again simple: no. The GDPR prohibits employers from processing this type of health data. Of course, this also immediately diminishes the relevance of asking the question: you can't really do anything with the answer.
However, there is also more to say about this. It is not excluded that a registration as referred to here is kept by the employer's occupational health and safety service. In that case, the employer does not process itself and the health and safety service may – of course – process health data. KLM recently announced that it would like to register who has been vaccinated in this way, in order to be able to plan flights to destinations where vaccination is required. It remains difficult, of course, that the health and safety service will have to provide lists of people who can or cannot fly to these kinds of destinations. This means that the relevant information – indirectly – ends up with the employer again. The question is whether this detour is sustainable.
Finally, it should be noted that the minister announced during the press conference on September 14, 2021 that he would like to make it possible to register the vaccination status of employees for healthcare, but only for that sector. Whether and how this will be arranged remains to be seen.
Can an employer ask his employees for a valid corona QR code?
At the moment this is not (yet) allowed. Although the QR code is central to the measures now in force and announced, employers cannot yet ask their employees for such proof (cured, vaccinated or tested).
This naturally leads to skewed situations. Think of the hotel, where guests feel safe because all guests - including themselves - have had to show such proof. At the same time, they are served and the rooms are cleaned by hotel employees who should not be subject to this requirement.
During the press conference on September 14, 2021, the minister announced that it will be investigated whether the use of the corona check app can also be extended to the workplace. Care is again being considered first, but on this point the minister added that this will also be investigated for other sectors.
Can an employer ask employees who have not been vaccinated to stay at home?
This is a question that is on the mind of many employers right now. Lease plan for example. She asked her employees to come back to work in the office, but at the same time set a condition: employees are only welcome if they have been fully vaccinated. The question is whether unacceptable pressure is still being exerted on employees in this way to be vaccinated. Moreover, the question is whether an employer does not exclude employees in this way.
Employers are required by law to provide a safe workplace and thus to prevent the employee from suffering physical or psychological damage in the performance of his or her work. Especially with a view to the current corona situation, the Working Conditions Decree includes the (temporary) obligation to take those measures and provisions in good time that are necessary to prevent or limit the risk of contamination of employees and third parties with SARS-CoV-2. on jobs. According to the Decree, these necessary measures and provisions include at least:
- the observance of sufficient hygienic provisions;
- providing effective information and education to workers on the fight against SARS-CoV-2 in the workplace; and
- keeping adequate supervision of compliance with the necessary measures and facilities referred to in this article.
An employer who announces that it only wants to allow employees into the workplace if they have been vaccinated, but does not actively request or check this, is in principle acting within the limits of the law. However, employees will feel a certain pressure. So no vaccination compulsion, but vaccination urge. If this pressure is increased too much, there could again be a conflict with good employership.
There is also the danger of exclusion. Exclusion can be very harmful to employees. Not only on a social and mental level, but also for career opportunities, for example.
Making a distinction as referred to here is therefore only allowed if necessary. And that is where the shoe pinches in many cases. After all, the question is whether less far-reaching measures do not lead to sufficient safety. The exclusion of employees is in any case not mentioned in the aforementioned Decree, in which other measures are mentioned. For example, measures such as splash screens or face masks during relocation can be considered as a less far-reaching alternative. We expect that it will depend on the circumstances whether a measure such as this is considered permissible.
Is an unvaccinated employee with corona entitled to wages?
The answer is yes. An employer must continue to pay the wages of a sick employee, including those who choose not to be vaccinated and who become incapacitated for work due to a corona infection. Only if an employer could prove that the employee became ill intentionally with the aim of not having to work, could the wages be stopped. That seems to us to be only a theoretical possibility. After all, the motivation for not vaccinating will usually be different.
For further information, contact:
Ron Andriessen, Partner
t: +31 20 3052030
Francis ten Broeke, Lawyer
t: +31 20 3052030
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