By Lorraine Mordaunt
In the Netherlands, COVID-19 vaccination is carried out according to a priority list set by the central government based on the advice from the Health Council of the Netherlands. Healthcare workers and vulnerable people will be the first to be vaccinated. Can employers require employees to get vaccinated?
Good employment practice
The employer can give reasonable instructions to employees. What is reasonable depends on the principle of good employment practice. Instructing an employee to get vaccinated entails infringement of the right to physical integrity, enshrined in art. 11 of the Constitution. To appeal to the Constitution, the employee must do so based on the principle of good employment practice. This means the employer and employee should take into account each other’s legitimate interests. This will come down to a weighing of interests.
Working Conditions Act
The Dutch Working Conditions Act imposes a general duty of care for a safe working environment on the employer. This includes preventing positively tested employees from entering the workplace and infecting colleagues and others. However, the duty of care does neither allow denying complaint-free employees access to the workplace for not being vaccinated nor require an employee to get vaccinated. The employee does not pose any threat to others or a safe working environment.
This law is not specific enough for a compulsory vaccination against COVID-19. For many professions, vaccination will not be necessary because there is no physical contact or because the work does not involve vulnerable people (such as vulnerable elderly people, lung or heart patients or vulnerable people in intensive care). Mostly, personal protective equipment will be sufficient. If not, the employer must justify why personal protective equipment (as a less far-reaching means) is not sufficient.
Privacy
Health data is qualified as special data and processing is subject to additional stringent requirements under the GDPR. It may be argued whether an employee is obliged (by virtue of good employment practice) to inform he has been vaccinated. A spokesperson of Personal Data Authority stated that an employee does not have to tell the employer. In fact, an employer is not even allowed to ask about it, just as asking whether an employee is pregnant is forbidden. The employee may tell by own choice, but the employer is not allowed to process this. Not even with permission of the employee, because an employee may feel pressured to give consent. The employee’s consent will not be valid. Performing such actions without legal ground for processing or reason for exception can lead to high fines for the employer.
Only the company doctor has access to the employee’s medical information. The company doctor is not allowed to disclose about the nature of the illness. However, the company doctor may indicate when the employee is expected to recover or about work restrictions. The employee can be advised to be relocated to another place with fewer health risks.
Alternatives
An employer may emphasise the importance of vaccination and refer to information provided by the National Institute for Public Health and Environment. If the use of personal protective equipment and testing is insufficient to guarantee the health safety of the employee and others, the employer may consider the following. Whether relocation, working from home or whether role change is possible. The employer should discuss the consequences with the employee and weigh the interests. Unsuitability is a reasonable ground for dismissal. Therefore, the possibility of dismissal as a last resort has to be discussed if the aforementioned options are not possible.
Wage payment or suspension
The employer has to pay salary, unless non-performance of work must reasonably be for the account and risk of the employee. It can be argued who’s risk it is for the employee not being able to work for not vaccinating. It is the employer who denies access to work. However, it is the employees choice not to get vaccinated. In general, non-performance of work is considered an employer’s risk. In addition, the employee can invoke his fundamental right. Therefore the employer will have to continue to pay wages and cannot apply wage suspension.
Job requirement
Requiring vaccination is only allowed if there is a legitimate aim and the means of achieving that aim are appropriate and necessary. A distinction is made between vaccinated and unvaccinated applicants or employees. Vaccination must be necessary for the protection of the applicant or employee, colleagues and others to not get infected. Vaccination must also be effective in achieving that goal and cannot be achieved with less-far-reaching means. However, it can be argued that vaccination of only the vulnerable group and usage of protective equipment is sufficient. Therefore, vaccination cannot be qualified as a legitimate aim, necessary nor proportionate. If vaccination would meet al these requirements, an applicant may be examined by the company doctor pursuant to the Medical Examinations Act. This is only possible if the applicant must meet special requirements and limited to the purpose it serves. The company doctor may if the applicant or employee is vaccinated and inform the employer whether or not the employee is suitable for the job. The company doctor is bound to secrecy and will not disclose the reason.
Conclusion
In the Netherlands, there is – except for e.g. healthcare employees – no legal ground compulsory vaccination. The Dutch Working Conditions Act imposes a general duty of care for a safe working environment on the employer. This includes preventing positively tested employees from entering the workplace and infecting colleagues and others. However, it does neither allow denying complaint-free employees access for not being vaccinated nor requiring an employee to get vaccinated.
An employer is not allowed to inquire about vaccination. Only the company doctor has access to medical information and is not allowed to inform the employer if the employee is (not) vaccinated. If vaccination is required for (healthcare) employees, the company doctor may only inform the employer if the employee is suitable for the work, not disclosing the reason.
An employer may promote to get vaccinated, but the choice remains with the employee. Refusing vaccination – if known to the employer – could have consequences such as relocation, role change or dismissal.
