Last update: 13 July 2021
In this Q&A Stephanie Dekker and Annemeijne Zwager answer a number of COVID-19 related questions that we are often asked by employers. This Q&A is updated regularly.
1. Can I make it mandatory for my employees to get vaccinated?
No, you cannot. Vaccination is not mandatory in the Netherlands, and employers cannot force their employees to get vaccinated.
Employers may, however, encourage their employees to get vaccinated of their own free will, for example by promoting vaccination. Still, it is vital to exercise caution when promoting vaccination, as employees might easily feel that they are being ‘pressured’ by their employer and are being limited in their decision whether or not to get vaccinated. Employers must also take into account the General Data Protection Regulation (GDPR), as they are not permitted to process data about the vaccination status of their employees (also see Question 2 below).
2. May I ask my employees whether they have been vaccinated? If so, may I record that information?
Asking employees about their vaccination status is a violation of their fundamental rights, including the right to privacy (Article 8 of the ECHR and Section 10 of the Dutch Constitution), which carry over into employment relationships governed by private law. Employers must weigh the various interests involved, which includes demonstrating that asking their employees about their vaccination status is proportional and necessary for a legitimate purpose, and that a less intrusive measure would not suffice.
As matters stand, the possibilities for justifying a violation of employees’ fundamental rights appear limited.
Many employers will argue that they have an interest in protecting their employees and third parties from infection. Although this is a legitimate purpose, it is uncertain whether the other requirements (necessity, proportionality and subsidiarity) are also satisfied.
Vaccines reduce the risk of infection with and/or serious illness from COVID-19. In addition, it seems likely that vaccination at least limits transmission of the virus, although further research will be necessary to confirm this (see the letter issued by the Health Council of the Netherlands on 20 May 2021 and the Outbreak Management Team’s advice of 25 May 2021). However, in most cases protection of employees (and third parties) can also be achieved by other, less invasive measures – washing hands, not shaking hands, maintaining the safe distance standard, installing screens, indicating walking routes, limiting the number of people at the workplace, etc. In addition, for the time being, the same coronavirus measures and advice with regard to working from home still apply to both vaccinated and unvaccinated persons. Therefore, at this time, there is no reason to make a distinction on this point either.
Asking employees about their vaccination status will in any case also need to be part of the employer’s overall policy, including measures to prevent unjustified exclusion or discrimination of employees who cannot be vaccinated, or do not wish to be. In addition, information about whether an employee has been vaccinated is personal data concerning health within the meaning of the General Data Protection Regulation (GDPR). Employers are not permitted to process such personal data about their employees unless they can invoke a ground for exception. At present, no such grounds exist. This means that the GDPR prevents employers from recording their employees’ vaccination status or otherwise processing any data associated with their status.
3. One of my employees does not want to get vaccinated. May I refuse them entry to the workplace until they are vaccinated?
No, the basic rule is that you may not. In general, employees who are not vaccinated can use personal protection materials or be tested for COVID-19 in order to work safely and minimise the risk of spreading COVID-19. Whether this is the case can be checked by means of a workplace health screening conducted by the company medical officer. If that screening reveals that the employee cannot work safely, the possibilities for working safely elsewhere can be examined with the employee’s input.
4. One of my employees does not want to get vaccinated. May I stop paying their salary if they are infected with COVID-19 and are unable to work?
No, you may not. Employees may decide for themselves whether or not they wish to get vaccinated. If an employee decides not to get vaccinated and then calls in sick because he or she is infected with COVID-19, the employer must treat this as a ‘regular’ instance of illness and must therefore continue to pay the employee’s salary. Moreover, employers may not ask what an employee’s reason is for calling in sick, nor keep records of those reasons.
5. We have a job opening. May we list mandatory vaccination as one of the job requirements?
As far as we can determine, that is not without risk. It is not unlikely that distinguishing between vaccinated and non-vaccinated job applicants constitutes indirect discrimination and a violation of the laws on equal treatment, given the possibility that an individual cannot be vaccinated for reasons of their religious beliefs or their health or age. Making such a distinction (whether directly or indirectly) is not permitted when forming an employment contract, unless the employer can demonstrate that the distinction is objectively justifiable based on a legitimate purpose and that the means (the job requirement) of achieving that purpose are appropriate and necessary.
Furthermore, under the Dutch Medical Examinations Act (Wet melding medische keuringen, ‘MWK’) employers are not permitted to ask questions about a job applicant’s health. In some specific cases, employers may have an applicant’s health examined by the company medical officer. However, that is only permitted if the criteria under the MWK are met, including that the job imposes specific requirements in terms of medical fitness, which includes protecting the health and safety of the applicant and third parties when the work is performed. The employers must then request the company medical officer’s written advice on the lawfulness of a medical examination for a specific job.
Whether an employee is vaccinated is furthermore regarded as medical data that the General Data Protection Regulation (GDPR) prevents the employer (or prospective employer) from processing.
6. May I ask the company medical officer to share information about which employees are vaccinated?
No, you may not. Company medical officers may ask employees about vaccinations and/or other medical information, if they have a valid reason to do so. Nevertheless, the company medical officer may not then share that information with the employer: they may only inform the employer as to whether or not an employee is fit to perform their job.
7. Coronavirus entry passes have been declared mandatory for my event: may I also require my employees who work at this event to show sush a pass?
No, you may not. The Dutch Temporary Coronavirus Entry Pass Act (Tijdelijke wet coronatoegangsbewijzen) expressly states that this requirement may not be imposed on persons carrying out work in a professional or business capacity. This includes employees, temporary workers and self-employed workers.
Face masks, taking temperatures and testing
8. May I make it mandatory for my employees to wear face masks in the workplace?
The requirement to wear a face mask in indoor public spaces was lifted on 26 June 2021. In some situations, such as public transport and secondary education, the government still requires everyone to wear a face mask. Employees must comply with this obligation. Employers are permitted to monitor compliance with that obligation and may therefore enforce compliance.
In other cases, the employer may impose the obligation to wear a face mask, provided that they are able to substantiate that that is necessary to prevent or limit the risk of infecting other employees or third parties with COVID-19: this is part of the employer’s duty of care to provide a healthy and safe working environment. Any employer that makes it mandatory for its employees to wear face masks, however, will need to make those masks available to its employees, or else reimburse its employees for the cost of buying them.
9. May I make it mandatory to take my employees’ temperatures?
No, the basic rule is that you may not. An employee’s temperature constitutes personal data that provides information about their health. Under the General Data Protection Regulation (GDPR), employers are not allowed to process such health data, unless they are able to invoke a ground for exception. At present, no such grounds exist, which means that those data may not be processed.
According to the Dutch Data Protection Authority, the GDPR does not apply as long as the employees’ temperatures are taken but not recorded or saved, temperatures are not measured using automated means (e.g. thermal cameras), and measuring temperatures does not have any automated consequences (e.g. whether or not entry gates open).
Regardless of whether or not the GDPR applies, taking temperatures is a violation of employees’ fundamental rights, including the right to privacy and the right to physical integrity (Sections 10 and 11 of the Dutch Constitution and Article 8 of the ECHR), which carry over into employment relationships governed by private law. Employers must weigh the various interests involved, which includes demonstrating that the measure is proportional, that it is necessary for a legitimate purpose and that a less intrusive measure would not suffice. The effectiveness and proportionality of measuring temperatures at the entrance to the workplace has been queried. The Dutch Federation of Medical Specialists (FMS) has advised against screening temperatures at the entrances to hospitals, arguing that taking temperatures offers little added value and can lead to a false sense of security. The website of the Dutch Data Protection Authority states that employers are allowed to let their employees take their temperatures themselves if this is in fact voluntary, if they can decide for themselves what to do with the results (call in sick or not), if they have a closed space where they can measure their temperature, and if it is impossible for others to find out the results of the measurements (e.g. using a thermometer that stores that information). The added value that such a measure offers seems minor, compared with the benefits of providing clear and accurate information and instructions allowing employees to check at home whether they have a fever and, if they do, to follow the RIVM’s guidelines.
10. May I make it mandatory for my employees to take a COVID-19 test or rapid test before they come into work?
No, you may not. Employees have the right to physical integrity and to protection of their private lives. This means that employers cannot obligate their employees to take a COVID-19 test or rapid test, unless an employee calls in sick and the company medical officer gives reasonable instructions to take a COVID-19 test. If the employee refuses, which is his or her right, this might constitute reason to suspend the employee’s salary.
Aside from that, employers may offer their employees the possibility to voluntarily take a COVID-19 test or rapid test: refusal may not carry any repercussions. Another condition that must be met is that ultimate responsibility for administering the test lies with a doctor or company medical officer who is listed in the Individual Health Care Profession Register (‘BIG register’) (Beroepen in de Individuele Gezondheidszorg Register) and who is associated with a test vendor. This means that employers may not administer tests themselves. All costs associated with COVD-19 tests and, where applicable, travel expenses are for the employer’s expense. Employers may also offer self-tests to their employees again, however, there may be no coercion or sanctions (direct or indirect) attached. Under the General Data Protection Regulation (GDPR), employers may not record or otherwise process the results of their employees’ tests.
If you have another question that is not addressed here, please feel free to contact Stephanie Dekker, Annemeijne Zwager or one of our employment law specialists.