The use of the coronavirus entry pass in the workplace
Pursuant to a temporary law the Dutch government wants to enable the use of the coronavirus entry pass (coronatoegangsbewijs, or ctb) at the workplace in certain sectors. The bill will be debated by the House of Representatives on January 5, 2022. The first version of the bill authorized the employer to demand a ctb from employees in high-risk working environments. The works council or personnel representative body was required to agree with the implementation. The Council of State was critical of this proposal, since it could lead to disagreement on the work floor. The amended bill therefore gives the government the ability to oblige the employer to request a ctb from persons who are present at their regular workplace in the context of a profession or business. The employer therefore no longer has a choice. The bill even explicitly prohibits employers from requesting a ctb if there is no legal obligation to do so and makes the introduction of a voluntary ctb punishable by law.
Employers are required to check the ctb of its employees, temporary workers, self-employed persons, volunteers and suppliers. When doing so, it must use the CoronaCheck scanner. It may not process or store these employee data in any other way. The law also explicitly states that 2G will not be used for the ctb at the workplace. The employee can therefore obtain a ctb by testing, by being vaccinated or showing that he has already had the virus.
The ctb sectors
The government may oblige visitors to the hospitality and cultural sector, and the non-essential retail sector, as well as students, to show a ctb. The bill adds that in these sectors employees must also show a ctb. A restaurant owner may thus soon not only have to ask his visitors for a ctb, but also the people who work for him.
Outside the ctb sectors
A different situation applies to employers outside of the ctb sectors. A ministerial regulation will later determine the sectors that are considered high-risk. In these high-risk sectors, a ctb can be required if necessary due to the epidemiological situation. The government notes that this is more likely to be the case in a factory setting where social distancing is not possible, than, for example, in offices where this is possible and employees can often work from home.
In addition, local customisation is possible. For example, the Minister can stipulate that employers in the healthcare sector musk ask for a ctb from employees who have direct contact with patients depending on infection rates in the region.
If the use of a ctb has been made compulsory at the workplace, employers do have the choice to provide alternative protection. These alternative protective measures will also be further detailed in a ministerial regulation. Therefore, the employer cannot decide which alternative protective measures to take. If the sector and work location in question are mentioned in the regulation, the employer will have to choose between introducing a ctb and complying with the protective measures as regulated in the regulation. Since these protective measures, just like the ctb, are based on the ministerial regulation, their introduction does not require the consent of the works council or another representative body.
Consequences for the employee
If an employee must be tested in order to obtain a ctb, the question arises whether the employer may ask the employee to be tested outside working hours. In this regard, the government states:
‘Employer and employee may be expected to make arrangements in good faith so that the employee is given a reasonable opportunity to be tested. The factual circumstances determine what is considered reasonable in the specific situation and also at whose expense and risk the travel costs and travel time are. There are conceivable circumstances in which it is possible and certainly not objectionable for the employee to undergo testing outside of working hours.’
If the employee refuses to be tested, the employer and employee will have to find a solution together. In this context, the employer (and employee) may be required to relocate the employee to a workplace where no ctb is required. Another solution is to temporarily change the employee’s job, if that means he can perform work for which he does not have to show a ctb. If this is not a solution, or cannot be required of the employer or employee, the employer will have to deny the employee access to the workplace. In the end, the employer must comply with the ctb obligation imposed by the government. The employee will then be unable to perform his work. Employers can in such circumstances, in principle, stop the salary of an employee who refuses to cooperate. However, it may not be reasonable in the given circumstances to stop paying the salary, considering the availability of testing possibilities. If tensions mount and the employee and employer really cannot work things out together, the ultimate remedy would be to terminate the employment contract.
Conclusion: little room for discretion for the employer
The bill prohibits the use of a ctb without an underlying legal obligation. The bill only gives the Minister the authority to oblige employers in certain sectors and under certain conditions to ask their employees for a ctb. Dependent on the sector, the employer can opt for alternative protective measures as detailed in the regulation. Some employers may be disappointed by the extent of the governmental intervention.