Many companies are struggling with employees returning to the office and providing a safe working environment for employees in accordance with their statutory obligations in this regard, among others, following from working conditions legislation. Therefore, some companies in the Netherlands — similar to companies in other countries — recently announced the introduction of a vaccination obligation for employees returning to the workplace, in order to provide for a safe workplace. These companies, however, indicated that no proof of vaccination would be required and that exceptions would be made for people who, due to their health or religious beliefs, do not want to be vaccinated before returning to the office. As a vaccination obligation is considered to be a far-reaching measure, the announcement resulted in a public debate in the Netherlands.
A recent survey by the employers' organisation AWVN (published on the AWVN website on 4 September 2021, "Werkgevers: vaccinatiestatus vastleggen voor deel werknemers", by Jannes van der Velde) showed that a majority of the employers that participated in the survey would like to have insight into the vaccination status of their employees in order to ensure a safe workplace, for example by allowing employees to ask for proof of vaccination or require a COVID-19 test before returning to the office. Several trade unions already indicated to be against this.
An employer in the Netherlands is, in principle, not permitted to oblige an employee to be vaccinated and/or to attach legal consequences to non-vaccination, nor is it permitted to ask an employee whether they have been vaccinated. At this stage, there is no legal basis for such requirement and it could, therefore, be considered as a breach of the employees' fundamental right to the guarantee of the inviolability of the human body, respect for one's privacy and data privacy legislation (General Data Protection Regulation (GDPR)). However, under exceptional circumstances, where there is very clear indication of true necessity for a vaccination requirement, a breach of the aforementioned fundamental rights could be acceptable, provided that such breach is kept to an absolute minimum.
Employers have a duty of care under, among others, the Dutch Working Conditions Act with respect to providing a safe work environment for their employees. Due to the COVID-19 pandemic, employers should take sufficient measures to avoid and protect the employees and third parties on the work floor against a COVID-19 infection. Discussions arose on whether it could be argued that this duty is considered a compelling interest and justifies a breach of the constitutional right of employees. As there is no precedent yet, this has been a hot topic for several months now.
In case of a balancing of interests between the interest of the employer and the employee, the balancing of interests will generally be in favor of the employee. The employer's interest will generally be disproportionate to the considerable intrusion on the employee's privacy, especially as employers could use less far-reaching measures to ensure a safe workplace, such as providing for hygiene measures, safeguarding the 1.5-meter social distance and limiting the number of employees at the workplace by allowing homeworking.
Exceptions could, however, arise in specific "critical" sectors, such as the healthcare sector (i.e., hospitals, retirement homes, nursing homes etc.) as it could be argued that there are compelling interests of the patients that must be safeguarded as well.
Not only in the Netherlands but also in other countries, the vaccination obligation is a hot topic. Many large companies in the US have already announced a vaccination obligation for their employees. The French government announced that healthcare personnel and people who come into contact with at-risk groups via their work should be vaccinated prior to the second half of September 2021. Those who have not been vaccinated after that time may no longer appear at work and will not be paid.
The discussion around the vaccination obligation is also playing an increasingly important role within the aviation sector. In Canada, it was recently determined that all employees in the federally regulated air transport sectors must be vaccinated. Canada and some Asian countries have announced that they will be closing their borders to airline crews who are unable to provide proof of vaccination. This has major implications for the global aviation industry. Airlines in the Netherlands are also discussing this topic.
Based on the above, it can be concluded that a vaccination obligation in the workplace is and will remain an lively topic. Although there is currently no legislation that allows a vaccination requirement, this does not mean that this might not change in the future, especially in some sectors, such as the healthcare sector and the aviation industry.
Click here to read the alert in Dutch.