On January 6, 2021, the vaccination campaign for COVID-19 started in The Netherlands. By now, a small proportion of the Dutch population has been vaccinated. However, there is also a small part of the population with doubts about the vaccine. In case they choose not to be vaccinated, questions can be raised. May the employer oblige the employee to be vaccinated? And may the employer keep track of who has been vaccinated?
No legal basis for mandatory vaccination
To answer the first question, the employer may not oblige the employee to be vaccinated. The employee can invoke the right to private life (art. 8 ECHR) – including physical integrity – and the right to inviolability of the body (art. 11 of the Dutch Constitution). Exceptions to these fundamental rights are only possible if regulated by law and currently there is no legal basis for a mandatory vaccination for COVID-19.
Although the mentioned fundamental rights only have direct effect between citizens and government, the employee can also derive protection from them in the relationship with the employer. In that case, the interests of both parties should be weighed, which often turns out in favor of the employee.
The employer´s duty to provide a safe work environment
How do the fundamental rights of the employee relate to the employer’s duty to provide a safe work environment? The employer´s duty, based on the Dutch Working Conditions Act, means that the employer must prevent or limit risks to the safety or health of employees. This includes the risk of contamination with the coronavirus at the workplace.
In most cases, the employer’s duty will not outweigh a mandatory vaccination for employees. In order to meet the employer´s duty towards other employees, the employer can take less drastic measures. Allowing a non-vaccinated employee to continue working will not be in conflict with the employer´s duty if proper safety measures are taken.
For employers in the healthcare sector, there is another interest at stake, the patient’s safety. To minimize contamination of patients, only vaccinated employees may be allowed to work in a certain department. In this case, the employer’s duty clashes with the employee’s freedom to refuse vaccination. It is then up to the employer to place the employee in another position where he can continue to perform his duties. This could include transferring the employee to departments with less vulnerable patients or providing protective equipment.
Privacy of the employee
The Dutch privacy law prohibits the processing of health data, including the processing of data concerning vaccinations. This means that an employee does not have to tell his employer whether or not he has been vaccinated and an employer may not ask. If the employer does ask, the employee is not obliged to answer. Even if the information is already known, the employer may not process it. The moment the information is processed in (for example) a personnel administration, this is regarded as prohibited processing of special personal data.
Mandatory vaccination as a job requirement
Even a potential employer may not ask a job applicant for this information. If an employer does so, the job applicant is not required to answer. Is it then possible to make vaccination a job requirement for future employees? From a legal perspective, it is possible to impose such requirements, but to do so, the distinction that has been made between vaccinated and non-vaccinated job applicants must be objectively justified by a legitimate purpose, with the means being appropriate and necessary. This is a difficult task.
In short, the employer cannot oblige the employee to be vaccinated. At the same time, the employer does have a duty towards other employees and third parties (e.g. patients) to reduce the risk of contamination with the coronavirus as much as possible. If a non-vaccinated employee poses a risk to other employees or third parties, it is up to the employer to take safety measures to comply with his duty.