23 Jun 2021 Mandatory vaccination for employees: is that allowed?
Recently, we wrote an article on the question whether an employer is allowed to know whether an employee has been vaccinated (May the employer be informed whether an employee has been vaccinated against corona?). As an extension of that, today we are addressing the question of whether an employer may require an employee to be vaccinated.
It has been a point of discussion in health care for years. A common viewpoint is that anyone who fails to get vaccinated against contagious diseases such as the flu may not only be putting themselves at risk, but others as well. Yet mandatory vaccination for employees is not possible.
Compulsory vaccination is an infringement of Article 8 of the European Convention on Human Rights: the right to a private life and, in particular, to physical integrity. The moment an employer wants to infringe such a fundamental right, there must be a legal basis for doing so. This legal basis does not (yet) exist for compulsory vaccinations.
The Working Conditions Act does not offer any solace in this case either. In general, it states that, as an employer, you are responsible for a good working conditions policy and for the health and welfare of your employees. However, the law does not provide sufficient basis to argue that making a corona vaccination obligatory also falls under this.
There have been calls in the past to make vaccinations compulsory under certain circumstances. In 2015, however, then-Social Affairs and Employment Minister Asscher stated in a parliamentary letter that he was not in favour of doing so. Asscher was responding to a recommendation by the Health Council, which had suggested exploring the possibility of mandatory vaccinations in specific cases. This would be the case, for example, when an employee's refusal to be vaccinated puts others at risk.
Asscher then wrote: "The employer always remains responsible for the health and safety of employees. However, employer and employee together may also have a responsibility towards third parties. This can be a reason for the employer to set vaccination against certain infectious diseases as a standard, for example in a healthcare institution. For those who do not want to meet that standard, other protective measures or alternative work must be sought."
Employers can choose to offer their employees to be vaccinated. However, the necessary caution should be exercised. Employees should not feel pressured.
Moreover, privacy legislation also plays a role here. Medical information - as we wrote earlier - falls under the heading of special personal data and may in principle not be processed by the employer. It is therefore not allowed to keep a record of who has taken advantage of the offer of a vaccination and who has not.
To summarise: an employee may not be required to be vaccinated, but an employer may offer an employee to be vaccinated. However, no pressure may be exerted and the employer may not keep a record of who makes use of the offer to be vaccinated and who does not. Would you like more information on this topic or on other topics of employment law? SPEE advocaten & mediation will be happy to assist you.