Earlier, we wrote about the duty of care of employers combined with asking the employee to come to work in the office during the government’s home working advice. This article can be found here. A hot topic by extension is whether employers should only allow vaccinated employees into the workplace. A tussle between the employer’s duty of care vs privacy/bodily integrity of the employee. Who will win this tussle?
Let’s say at the outset that unfortunately, here too, the answer is not yet black and white. There is an important task for the government, judicial authorities and perhaps the privacy authority to clarify which interest weighs more heavily. We reflect on the different positions and interests in this area.
LEGAL: SAFE WORKING ENVIRONMENT
To start with, from a legal and scientific point of view, the idea is that a vaccination obligation from the employer is only possible if the employer has a compelling reason. This bar is high. Fear of the spread of the coronavirus is not important enough. Nor is the desire of employees to work only with vaccinated colleagues. An example for sufficiently weighty is a healthcare facility where employees work within 1.5 metres with people where wearing a face mask is not possible. A unique situation.
The bottom line is that an employer must ensure a safe working environment for employees. There are now all guidelines for this (see our earlier article, among others). Allowing only vaccinated workers is not seen as a permissible rule for the time being. So for the time being, we have to see if another way to ensure the safe working environment is possible.
There is no case law in this area in the Netherlands yet. The General Court of Curaçao did make an interesting ruling: a summary dismissal of an employee who had refused vaccination was overturned.
EMPLOYEES: PRIVACY AND BODILY INTEGRITY
Trade unions warn that employers cannot and should not (in)directly oblige employees to vaccinate and/or provide information about them. They speak of indirect coercion in that case. Employees cannot and should not be forced to vaccinate. Better put, employers may not even ask whether or not an employee has been vaccinated. This violates privacy and the fundamental right of bodily integrity.
EMPLOYERS: SAFETY AND WORKABILITY
Meanwhile, some employers do (want to) allow only vaccinated employees into the office. A not incomprehensible thought from the point of view of an employer’s duty of care. After all, such a measure could contribute to workplace safety. Moreover, friction may arise on the shop floor when vaccinated employees have to work together with non-vaccinated employees. Especially if the vaccinated employee has (had) an important reason for vaccination, for instance because the employee (or their loved ones) are particularly vulnerable. Tricky dilemmas, which unfortunately are not yet sufficiently clear.
WHO DOESN’T DARE.
Leaseplan is daring enough to ask employees who want to return to the office to be vaccinated. In doing so, there is no obligation to come to the office and there will be no check for actual vaccination (as this is not allowed).
Leaseplan’s measure has evoked many reactions, both from supporters and (fierce) opponents. Hopefully, this measure will ensure that there will not only be a sharp discussion between proponents and opponents, but that there will actually be clarity from the government and judicial authorities for the foreseeable future. Because only then will employers know what they can and cannot demand in terms of vaccination in the workplace.
Until then, we have to make do with various opinions and general guidelines in the context of a safe working environment as long as the coronavirus is active.
Please feel free to contact us if you would like to spar on this topic.