5 January 2021
What options does an employer have to urge or coerce employees to be vaccinated against Covid-19?
The options seem limited. In this blog, we explore the possibilities and address imposing employment law sanctions in the event of a refusal to vaccinate.
There is no legal obligation to vaccinate. Therefore, there is no law to which an employer can refer to compel an employee to be vaccinated.
This act recognises the duty for every employee to take care of his or her own health and safety, as well as that of others at the workplace. This can certainly also be understood to mean preventing colleagues, customers or patients from becoming infected with Covid-19. That is why employer and employee are obliged under the Working Conditions Act to be so alert that people who have tested positive do not enter the workplace. With the Working Conditions Act in hand, the employer cannot force the (healthcare) employee to be vaccinated.
The authority relationship means that the employer may give instructions to the employee. Think of instructions and clues about working hours, clothing, hairstyles, tattoos, and piercings. With the latter, you slowly approach the area of “intervention” by the employer in the privacy and physical integrity of the employee.
The Subdistrict Court of Rotterdam recently ruled that BOAs (special investigating officers) had to cover their tattoos while working. There is also the much older judgment about the firefighter who refused to shave his beard. That was a reasonable assignment because of safety requirements; by not meeting them, the firefighter was rightfully fired, according to the Central Appeals Tribunal (for the public service and social security matters) in 1984.
Closer to the vaccination obligation is the justified dismissal of a firefighter who refused to undergo a lead test via blood collection. In short: the right of instruction arising from the employment contract offers possibilities under certain circumstances to impose restrictions on fundamental rights, including physical integrity. It always requires a weighing of interests.
Forcing an employee to be vaccinated will therefore not work, but there is perhaps the prospect of imposing sanctions if the employee refuses. This only seems possible if vaccination is necessary for the protection of the person themselves or for other colleagues, customers or patients, and if it is established that vaccination is also effective to achieve that goal (i.e.: protection from infection of vulnerable others), and if it is established that this goal cannot be achieved in another way that is less drastic for the employee (vaccination of the vulnerable group itself, or the use of medical masks, protective clothing, etc.), and it has also been established that vaccination is safe for the employee.
Only in healthcare, hospitals and nursing and care homes can I imagine, in connection with the protection of patients who are very vulnerable to Covid-19 that non-vaccination could lead to employment law sanctions.
Sanctions include transfer to another department where the employee will not come into contact with vulnerable persons. If that were not possible, even dismissal would be a possibility. This can be inferred from the case law on firefighters. As an example of an existing form of conditional vaccination obligation, reference can be made to dentists. For example, the KNMT employment conditions regulation states: “At the employer’s request, the employee will be vaccinated against hepatitis A, unless …), and that if the employee refuses to cooperate in a test to determine the antibodies against hepatitis A (via blood collection), the employer can take “measures”. In the lead test case, explicitly established requirements also played an important role, so that if an employer is considering imposing sanctions on non-vaccination, it is important to draw up a clear policy.
As an employer, you must provide a safe working environment for staff and others within the organisation. As stated, this does not imply an obligation for employees to be vaccinated, but requests are possible depending on the situation. For a more urgent or compelling request, with possible employment law sanctions, I see few possibilities for employers outside the healthcare sector, but within the healthcare sector, vaccination refusal could have consequences under employment law, provided the strict aforementioned requirements are met.
Do you have a question about this topic? Please do not hesitate to contact me.
