Can the employer oblige the employee to be vaccinated and if so, what are the consequences if the employee refuses?
The Covid-19 vaccination programme is in full swing and the moment is gradually approaching when the average employee is invited to get vaccinated. This raises questions for the employer: can the employer oblige employees to be vaccinated when it is their turn? Can the employer ask the employee whether they have been vaccinated? What can the employer do if an employee refuses to get vaccinated? You can read the answers to these questions in this article.
Can the employer oblige the employee to be vaccinated?
Several newspaper articles report that employers are forcing their employees to be vaccinated. That is not allowed. A vaccination requirement violates the right to physical integrity, a fundamental right. Exceptions to this fundamental right are only possible under very strict conditions and those conditions are currently not met. It is therefore not permitted to oblige employees to be vaccinated.
May the employer ask the employee whether he/she has been vaccinated?
Whether or not a person is vaccinated is so-called ‘special personal data’, because it says something about the health of the person concerned. The General Data Protection Regulation (GDPR) prohibits the processing of special personal data, unless an exception applies. That is not the case here. This means that the employer may not ask the employee whether he/she has been vaccinated or wants to have it done. The employee may inform the employer of his/her own accord, but the employer may not subsequently do anything with this data, not even if the employee would give permission to do so.
What can the employer do if an employee refuses to get vaccinated?
Since the employer is not allowed to ask whether the employee has been vaccinated and if the employer finds out, it cannot process the data, the employer cannot take action at present if an employee refuses the vaccination. It is possible that in time this will be possible when, similar to certain vaccinations in the health sector, a legal basis is created which means that certain tasks within certain professions can no longer be performed if the employee has not been vaccinated. Only then would it be possible to take action under employment law, for example by transferring employees to another job or, if there is no other option, dismissing them.
What should the employer do?
The employer is of course obliged to take sufficient measures to guarantee safety in the workplace as much as possible: working from home where possible (see the General criteria for working from home – Guidance: ‘Work at home, unless there is no other option’. ) and implementing the RI&E protocols of the sector organisation (www.mijncoronaprotocol.nl).
The Covid-19 pandemic keeps posing challenges, also in the field of labour law. Should you have any questions about this, please contact Natascha Niewold, or one of our other labour lawyers.