In times of corona, the legal obligation for an employer to ensure a safe (and healthy) working environment for employees has gained an extra dimension. Of course, working from home, keeping one's distance and introducing extra hygiene measures are ways to fulfil this duty of care.
For a number of employees, the nature of their task or position does not allow them to work at home, and it is not always possible to maintain sufficient distance from other employees in the workplace. One way of limiting the risks of corona contamination in the workplace is to preventively test employees for corona.
Another perspective is that employees who have to undergo quarantine but cannot work from home are entitled to their salaries but are not productive. For that reason, too, employers have an interest in knowing (quickly) whether employees pose a risk of infection.
But is it actually allowed to have an employee tested for corona? And if so, what are the rules?
What is allowed and what are the conditions?
Article 3 of the Working Conditions Act stipulates that the employer is obliged to ensure the safety and health of employees in all aspects related to work. The risk of infection with the coronavirus constitutes a health risk for employees. The employer must therefore limit the exposure of employees to this risk as much as possible. Specifically for corona, the Working Conditions Decree lays down temporary additional requirements. The employer must take the 'necessary measures and provisions' in good time, both with regard to his own employees and to third parties, to prevent contamination with the corona virus. The law does not specify what these measures and facilities should be. Examples include facilitating work from home, creating walking routes in the workplace, ensuring that employees can keep a sufficient distance from each other, hygiene measures and the obligation to wear a mouth mask during work. Not all measures are as easy to take in all industries. However, this does not discharge the employer from his duty of care. The employer will therefore have to examine how he can guarantee the safety and health of the employees as much as possible by other means.
One way of limiting the risks of corona contamination in the workplace is to preventively test employees for corona. The employer could choose to do this by setting up a quick test location at the workplace. The government has set requirements for the use of rapid tests in the interest of quality and safety. The rapid tests used must be clinically approved and bear the so-called CE mark. Furthermore, the rapid tests may only be administered under the supervision of a BIG-registered physician (e.g. a company doctor) and the administration of the rapid tests is exclusively reserved for a doctor or another authorised independent healthcare provider. The employer may not play a role in this.
The starting point is that the employer cannot oblige the employee to undergo a rapid test. The use of the test site is voluntary. It follows from the guidelines drawn up by the government that it is not permitted to attach consequences to an employee's choice of whether or not to undergo preventive testing. However, there is no case law on this and the question is how judges will deal with this in practice, for example in situations where safety cannot be guaranteed without testing or, for example, if the employee has complaints or has been in close contact with someone infected with the virus. According to RIVM guidelines, in such cases an employee must either be tested or spend at least ten days in quarantine. If an employee has no interest in not being tested and must therefore go into quarantine but is unable to work from home, it is conceivable that the employee will not be entitled to salary because the ten-day quarantine period cannot be shortened. However, practice will show how judges deal with this.
For employers it is also important to know that the processing of medical data of staff - including the test results - by the employer is not permitted. The results may therefore not be included in a file. This prohibition also applies if the employee gives permission, since the employee, given his dependent position towards the employer, is not supposed to be able to give permission without pressure. This means that, in principle, only the (company) doctor and the auxiliary persons deployed by him/her are authorised to process the test results. They are also required to report to the GGD in the event of a positive result and to register in the event of a negative result. It should be noted that the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) has confirmed that the mere reading of a quick test is not a form of processing personal data and therefore does not fall under the AVG. It is emphasised that the test result may not be included in a file, the rapid test may not be automated and the processing has no automated effect (such as the automatic opening of an access gate).
The test site itself is also subject to various requirements. For example, a permit or permission for the test location is required from the responsible authority, such as the municipality. Ventilation guidelines must also be met, in accordance with the provisions of the Buildings Decree, supplemented by the recommendations of the RIVM. More information about the requirements for administering rapid tests and the layout of rapid test locations can be found in the guidelines drawn up by the government.
In some cases, working from home or distance at the workplace is not possible. As an employer, in times of coronary crisis, to still comply with the legal duty of care, it is a possibility to set up a quick test location at the workplace. However, in view of the laws and regulations, this is subject to strict requirements. The requirements not only relate to the design of the test site itself, but also to the privacy and rights of the employee, the mandatory involvement of BIG-registered doctors or occupational health and safety services and the limited role of the employer in the testing process. Moreover, an employee cannot be obliged to undergo testing.
Do you have any questions or would you like more information? Then please contact one of the employment law lawyers at SPEE advocaten & mediation.