At a time when the world is suffering from the COVID pandemic, hope rests in the advent of Covid-19 vaccines. In addition, employers are trying to anticipate the ever-changing situation in the workplace. In doing so, they must adhere to existing laws and regulations, which were not written with a situation like this in mind. The vaccination program is slowly but surely getting underway in the Netherlands. The question becomes: as the COVID-19 vaccine becomes available to everyone in the near future, is it possible to require employees to get the vaccine before returning to the workplace?
Can employers require their employees to take up the Covid-19 vaccine?
There is no legal basis (yet) for employers to require employees to get vaccinated. To require an employee to get vaccinated is in breach of article 8 of the European Convention on Human Rights: the right to a private life and in particular the right to physical integrity. The right to physical integrity is laid down in article 11 of the Dutch Constitution. Exceptions to this fundamental right are in principle only possible if regulated by law, and no such law currently exists.
In the Netherlands, work related health and safety obligations are laid down in the Working Conditions Act. According to this Act, the employer is responsible for the health and safety of its employees at work. This duty of care includes, among other things, preventing or limiting the dangers and risks around health and safety, and, if necessary, taking effective measures. The employee is required to follow all reasonable instructions from the employer to ensure health and safety in the workplace. This right to instruct employees allows employers to ensure that employees work in such way that the duty of care is met. It does not provide an absolute safety guarantee from the employer, nor is it a legal basis to require employees to have a COVID-19 vaccine.
There is, however, an ongoing discussion as to whether specific circumstances can justify infringing the fundamental right of physical integrity, for example in relation to employees in care homes. It is argued that an exception could be allowed due to a pressing social need, in this case to protect public health. Some legal experts argue that employees can be required to be vaccinated if the following conditions are met: (i) the health of patients and colleagues cannot be guaranteed in other ways; (ii) vaccination is without risk to the health of its employees; and (iii) vaccination significantly reduces the risk of infection. Whether this argument will hold up in court remains to be seen.
What can employers do and what risks are involved?
Employers can inform their employees about the importance of the vaccination programme. In doing so, they can draw the workers’ attention to the fact that vaccination will have a positive impact on the health and safety of everyone and refer to accurate sources of information, such as the National Institute for Public Health and the Environment (RIVM) website, to substantiate this. Employers should not pressure workers to take up the vaccine. It must remain a voluntary choice of the employees, and employers should emphasize this.
If the protective measures being taken by the employer are not sufficient to ensure a safe working environment, and there are no other protective measures possible except for vaccination, the employer can make a general request that employees who have not been vaccinated should work from home (if possible). However, this should be a general request. According to data protection legislation (the GDPR) an employer is not allowed to ask for or process any vaccination data relating to employees.
In sectors where employees work with vulnerable people such as care homes or health care, or in sectors in which working from home is not an option, employers could consider more far-reaching options for employees who choose not to be vaccinated. If refusing to be vaccinated endangers the health of others (colleagues, patients, clients, etc.) and no other protective measures are possible (such as extra protection equipment), the employer could choose to prevent the employee from carrying out certain tasks and instruct the employee to perform other tasks temporarily.
However this is in conflict with the GDPR. If an employer instructs employees who are not vaccinated to work from home or to perform other tasks in order to protect the health of others, the employer will need to know which employees have been vaccinated and which have not. As mentioned, from a data protection perspective, it is not permissible to ask for or otherwise process employee vaccination data and to do so will be in breach of the GDPR. Consequently, the option of preventing the employee from carrying out certain tasks is only really an option if the employee has actively and voluntarily informed the employer of their vaccination status.
Finally, as it is not yet clear if someone who has received the vaccine can still spread the virus, the same protective measures should still be in place for those who have been vaccinated. In light of their duty of care, employers are therefore still required to make sure that all of the protective measures are in place to minimize risk (i.e. enforcing social distancing at the work place, and providing up-to-date information on good hygiene practices etc.). Therefore, not allowing non-vaccinated employees access to the workplace and/or instructing them to perform other tasks might not hold up in court because the same safety measures remain in place as before. If employers want to be better safe than sorry, the only option that remains is to provide information and encourage their employees to be vaccinated.