NederlandsThere is a prospect of better times: with an increase in the vaccination rate, the infection rate is decreasing in the relevant age groups. Een hopeful development. In this phase we as employers are confronted with many questions. Because what about now? Can you oblige your staff to be vaccinated? Or can you deny access to the workplace to someone who does not want to be vaccinated? We have listed the answers to the 10 most frequently asked questions for you.
1. Can an employer oblige his staff to be vaccinated?
No that is not allowed. Getting vaccinated or not is always a voluntary choice. There is no legal obligation to vaccinate that an employer can rely on. Een employer may ask, but may not insist. It must be a non-binding request, without any consequences. Because such a question can very quickly feel like an obligation for an employee, because he depends on the employer for work and wages. Mandatory vaccination is contrary to article 8 of the European Convention on Human Rights and articles from the Constitution: it infringes on the physical integrity and inviolability of the employee's body. In addition, compulsory vaccination may constitute an infringement of freedom of religion and conscience. It is currently not expected that such a vaccination will be compulsory, not even for certain professions such as healthcare or GGD personnel.
2. Can an employer refuse staff who cannot provide a vaccination certificate?
No, in principle that is not allowed. That would amount to mandatory vaccination. Een exception is if there is a clear and proportional interest. At healthcare institutions and hospitals, you can clearly explain why only vaccinated employees are allowed to work in a department with corona patients or vulnerable people. For employees who do not want to say whether they have been vaccinated, or who indicate that they consciously do not have the vaccination, an alternative must then be sought by the employer. For example, slightly different work or the same work in a different department.
3. What options do you have as an employer to encourage your staff to be vaccinated?
What you are allowed to do is communicate about the importance of vaccination. Everyone in Nederland wants to return to a somewhat more normal society, so it is important that as many people as possible are vaccinated. Therefore, emphasize the importance of vaccination to employees and talk to them if they have any doubts or concerns about this. You may also encourage them by reimbursing travel costs to the vaccination site or by giving them time in advance if someone is vaccinated outside working hours.
4. Does an employee have to take leave if he is vaccinated during working hours?
This falls under calamity and other short-term absenteeism leave. It entitles the employee to paid leave for the required time. Inform employees about this. In addition, an employer may consider reimbursing the travel costs to the vaccination location. Een employer can also consider a vaccination that takes place outside working hours as working time. You should keep in mind that direct or indirect registration of the vaccination on the basis of the AVG is not allowed.
5. Can an employer ask who has and who has not been vaccinated?
No, an employer is not allowed to ask whether employees have been vaccinated. If the employer does so, the employee is not obliged to answer this. The employee may tell the employer of his own accord, but that information may not be registered, even if the employee has given permission for this.
6. Can an employer ask through a company doctor who has and has not been vaccinated?
New. Een company doctor can hear this from employees, but may not pass it on to the employer. Een company doctor may only inform an employer whether or not an employee is suitable for the job. The rest is professional secrecy and falls under the employee's privacy. Een company doctor can advise you to have an employee work at a different place. For example, if an employee does not have himself vaccinated, but does work in a place with additional health risks.
7. Can an employer ask an applicant whether or not he has been vaccinated?
Although the applicant is not yet in an employment relationship with the employer, he does want the job. There is a good chance that the person will feel compelled to answer. The position of the applicant is therefore equated with that of an employee who is already employed. Due to the balance of power, it is therefore not allowed for an employer to ask for this information. And if an employer does, then the applicant does not have to answer.
8. What if an employee refuses to be vaccinated and then falls ill, can the employer refuse to pay wages?
An employee is always entitled to wages in the event of illness, unless the illness was caused intentionally. Anyone who does not get vaccinated does not do so with the intention of getting sick. The employer must therefore continue to pay wages if an employee who refuses a vaccination becomes ill.
9. If the employee indicates that he will not be vaccinated, can an employer impose other measures, such as wearing a face mask?
Employers have a so-called 'right of instruction'. That means they may, if it is reasonable, ask employees to behave or dress in a certain way. Based on this right of instruction, an employer may ask an employee to wear a face mask. The employer is responsible for a healthy and safe workplace for all employees. It is therefore reasonable at the moment to ask employees who do not have themselves vaccinated to wear a mouth cap. You can also ask them to work in a department where there is more room to keep distance from colleagues.
10. If employees are vaccinated, do they still have to follow the precautions?
Until this week, the answer to this question was 'yes'. A lot was still unclear about the transmission of the virus after vaccination. This week there was some hopeful news; a study has been published by the CDC, the American RIVM. This shows that the coronavirus is hardly or not at all transmitted by people who have been vaccinated. That is good news. That seems to reduce the need to take precautions. This will undoubtedly become more clear in the near future.
Do you have questions that are not covered in this article? Let us know!
sources: government.nl