17 February 2021
Anyone who told an employer outside of healthcare a year ago that they should be involved in vaccination issues would have been declared crazy.
Now, almost every day, employers are wondering what they can or should do with all the information and advice from the government and questions from employees about vaccination against the coronavirus. Below we guide the employer through this maze of vaccination problems in the workplace.
An employer cannot oblige its employees to be vaccinated against the coronavirus. There is no legal basis within or outside employment law. This also applies to an indirect duty, so punishing an employee with a transfer or even dismissal if s/he does not agree to be vaccinated, does not seem to be legally tenable.
The opposite of punishment is to encourage certain behaviour by offering the prospect of financial reward, such as granting a one-off amount to employees who have been vaccinated. This can be compared with the so-called absenteeism bonus, in which an employee is granted extra days off if s/he does not report sick for one quarter. In my opinion, this is permissible according to employment law – however it is not permitted by the GDPR (General Data Protection Regulation). After all, in order to be able to pay a vaccination bonus, the employer will inevitably register that an employee has been vaccinated. There seems to be no basis for processing medical personal data in this way.
On 4 February, the Health Council of the Netherlands offered the Minister of Health, Welfare and Sport an assessment framework for whether an employer may request a vaccination certificate from employees. The advice is “yes” this is allowed on the provision that, among other things, the following circumstances are taken into account:
Whether the minister will convert this advice into legislation will be clear at the beginning of March 2021. At the beginning of February, the Ministry of Health, Welfare and Sport website explicitly stated: “As an employer, you may not refuse customers or staff without a vaccination certificate.”
This aspect has already been discussed briefly above. No, because of the GDPR, an employer may not record whether or not an employee has been vaccinated. The grounds for processing medical personal data referred to in the GDPR do not provide a basis for this. The consent given by the employee for registration is also not a valid basis because, due to the subordination in the employment relationship, the starting point is that the required voluntary consent is not provided. The Dutch Data Protection Authority (AP) can enforce this.
Disclaimer: the above is our status at the beginning of February. This can change quickly, for example if the Minister of Health, Welfare and Sport comes up with a response to the Health Council’s advice.
If you, as an employer, are feeling lost in the vaccination maze, the experts of GMW lawyers will be happy to show you the right way.
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