21 Dec Testing for corona: what is an employer allowed and not allowed to do?
There is much uncertainty among employers about what is and what is not permissible with respect to testing and/or questioning employees, or imposing an obligation to vaccinate. In this Q&A, we provide insight into the current state of affairs and also into the government’s plans to introduce the corona access certificate as a means for employers to ask employees whether they have been vaccinated, recovered from Covid-19, or tested negative. The aim of this is to increase safety in the workplace and, in the interest of general public health, to reduce the number of infections (and thus the pressure on the health care system).
It is good to emphasise that the government plans are at the stage of a bill, so it is not yet law. The discussion of the bill is scheduled for the coming weeks. This Q&A is largely based on this bill as submitted to the Lower House on 22 November 2021. It is quite possible that the final law will differ from the bill and the information in this Q&A. Naturally, we will keep you informed of further developments.
Q. What is a corona access certificate?
A. A corona access certificate (“CAC”) is a system introduced by the government, which, by means of a QR code, can verify whether a person has been vaccinated, cured of Covid-19 or tested negative. The current CAC system in the Netherlands is based on the 3G policy (vaccinated, cured or tested). The government has plans to introduce a 2G policy (access based on vaccinated or cured) in certain sectors if the 3G policy in combination with other measures does not sufficiently reduce the number of infections. This Q&A assumes the 3G policy.
Q. How does the CAC work?
A. The CAC is available via the so-called corona check app, which can be downloaded digitally and shows a QR code. A paper version is also possible. A scanner can also be downloaded – also digitally – which is usually used on a mobile phone. This scanner can scan the QR code and shows whether the person has been vaccinated, cured of Covid-19 or tested negative. Formally, the controlling body should also check if the data in the corona check app, matches the data on the identity document.
Q. Where is it currently allowed to use a CAC?
A. The Public Health Act (“PHA”) stipulates that use of the CAC is restricted to a number of specific sectors: culture, events, organised youth activities, the hospitality industry and sport. The new bill includes a provision that other sectors can be designated by ministerial regulation where the CAC will apply.
Q. And who does the CAC apply to in those sectors?
A. Whereas at present it applies only to visitors, the bill provides that in future the CAC may also be used for employees in the aforementioned sectors.
Q. Can the CAC also be applied to employees and employers?
A. Yes, it is envisaged that the PHA will be amended so that a CAC will also apply to companies and institutions outside the sectors currently defined by law.
Q. Can the government soon force employers to ask employees for a CAC?
A. That is the intention. When the government feels that the importance of public health is so great, it can, following the example of other European countries, impose a CAC. This is a sensitive discussion in the Netherlands, but the government has indicated that it is looking into the possibility of legislation to introduce a CAC on the work floor.
Q. Can an employer ask for a CAC even if the government does not require one?
A. It seems to be the intention of the bill that employers can only ask for a CAC if the government has designated the sector concerned for it. The government also hinted earlier that the social partners (employers and employees, the third way, jointly often called ‘the polder’) might have a role to play here, but we have to note that the trade unions have so far been adamantly opposed to far-reaching control measures on the work floor. So the question is whether it makes sense to leave this important issue to ‘the polder’ now.
Q. Can an employer ask his employees if they have been vaccinated?
A. That is allowed; asking the question is allowed. But the employee is not obliged to answer.
Q. Isn’t this question contrary to the AVG?
A. If the employee is only asked whether he has been vaccinated, this does not constitute a violation of the AVG. The AVG applies as soon as personal data are being processed. Asking a question is not yet processing and therefore does not fall under the AVG. But if the employer were to register this, personal data would be processed and the AVG would apply. An aggravating circumstance is that the vaccination status concerns the health of an employee and this data may only be processed in exceptional cases and then only by the company doctor (or someone else with a professional secrecy). This is another area where changes are to be expected if the bill is introduced.
Q. How does a mandatory CAC relate to the fundamental rights of workers?
A. In this situation there may be a clash of fundamental rights. However, fundamental rights are not absolute; a restriction is possible if there is a legal provision for this in the law. With regard to the bill, the government has requested advice from, among others, the Human Rights Board on the possible infringement of fundamental rights, and this advice has been taken to heart. In short, the advice is that – because the infringement of a CAC on the work floor is, for the time being, limited to the mandatory testing of employees – the infringement is limited and the introduction of the CAC on the work floor is justified.
Q. Are there any other possibilities than a CAC to regulate access to the workplace?
A. The bill introduces an exception to a CAC for certain sectors, namely in cases where the employer provides a – what is called – ‘comparable level of protection’ to that of a CAC in another manner, as determined by ministerial regulation. The concept of ‘comparable level of protection’ will be elaborated in a ministerial regulation.
Q. Is the consent of the Works Council mandatory when introducing a CAC on the work floor?
A. Absolutely. The Works Council has the right of consent, because it is a regulation within the framework of working conditions. However, the explanatory memorandum to the bill notes that if the CAC were not necessary because there is ‘a comparable level of protection’, the consent of the Works Council would not be required.
Q. If an employee cannot show a CAC, can he be denied access to work by the employer?
A. Yes, you may. This is precisely the intention behind the introduction of the CAC: in order to minimise the risk of contamination in the workplace, the intention is to deny access to the workplace to employees without a CAC.
Q. Will this employee be sent home?
A. If no other alternative work is available which can be performed without risk of infection (including an examination of a possible temporary change of position), the employee may be sent home.
Q. What about working from home?
A. If it is possible to work from home, then this is considered an alternative to being on the work floor. But if the employee who works from home must then occasionally appear at work for a meeting, for example, then in principle it is also the case that this employee must be able to show a CAC.
Q. Is the employer allowed to stop paying wages if an employee cannot show a CAC, cannot work and is sent home?
A. The main rule in labour law is that an employee retains the right to salary if he does not perform work, “unless the total or partial non-performance of the agreed work should reasonably be at the expense of the employee.” If:
- an employee refuses to be vaccinated or tested, and
- is therefore unable to produce a CAC, and
- it is also the case that no alternative work is available, and
- this employee cannot work from home, and
- finally, the employer can demonstrate that he has a legitimate interest in denying the employee access on the grounds of safety in the workplace,
then it may be that the employer can stop paying the wages of the employee sent home. But you see: it is a high threshold that has to be taken by the employer. It is also true that an employee can be expected to get tested rather than be vaccinated. Refusal of a test, as a result of which the employee is unable to produce a CAC, will therefore more easily lead to the cessation of salary payments.
Q. What about workers with conscientious objections or religious beliefs that prevent them from being vaccinated or tested?
A. Again, while these fundamental rights of employees must be respected as far as possible, they do not have absolute effect in this situation. In cases where the employer has a legitimate interest, supported by government policy in the general interest of public health, and the introduction of the CAC is necessary and there are no other means to achieve the intended goal and the CAC is not disproportionately heavy, an employee with conscientious objections can also be expected to produce a valid CAC. And again, getting tested is much less invasive and will be less of an infringement on employees’ rights than a vaccination. So the worker who refuses to be tested here runs the risk of losing his wages.
Q. What if a employee cannot get vaccinated or tested for medical reasons?
A. The government has announced that a temporary CAC will be introduced for people who cannot get vaccinated or tested for medical reasons. It seems that this temporary CAC is intended for a small group of people who cannot be vaccinated or tested for a longer period of time for medical reasons. We assume that this temporary CAC gives access to the workplace just like a ‘normal’ CAC.
If the employee is unfit for work and for that (medical) reason (temporarily) cannot be vaccinated or tested in order to carry out (reintegration) work, then in fact it is a situation where the inability to work is the result of an incapacity due to illness or disability. The employer would then be wise to ask the company doctor to advise whether the employee is actually unfit for work as a result of illness or disability and is unable to be vaccinated or tested. And if that is the case, then this employee in principle retains entitlement to salary, despite not being able to show a CAC.
Q. And can an employee be dismissed if he cannot show a CAC?
A. Dismissal is really the toughest and last measure imaginable in this situation. However, if all possibilities have been exhausted in the case of the refusing employee who cannot show a CAC, the employee cannot or does not want to perform alternative work and the cessation of salary does not offer a solution either, dismissal may be the appropriate course of action. As to whether an employee is then eligible for severance pay, it is conceivable that an employee who systematically refuses to be vaccinated or tested is acting in a seriously culpable manner and is therefore not entitled to compensation. This is still a bit speculative at this point, as there are no practical examples in case law.
Q. As an employer, can I prepare for the introduction of the CAC?
A. We recommend making the necessary preparations now even though the bill has not yet been passed as law. Because all sorts of issues will have to be addressed. Who, for example, is going to do the actual checking of employees, or how are you going to handle the processing of the data? Or how to deal with employees who cannot show a valid CAC? It is important that employers draw up a policy – in consultation with the works council – that includes, for example, a weighing up of interests, why the company is going to apply the CAC and what the consequences are of not being able to show a CAC.
Q. What is the employer’s responsibility with regard to testing?
A. Since a negative test certificate is only valid for 24 hours, an employee who has not been vaccinated will have to be tested very often in order to present a CAC. That is his own responsibility. It is also easy to arrange and free of charge, so an employee cannot use that as an excuse. However, if it is not easy to arrange (e.g. due to a long distance from the testing site), it might be worthwhile for the employer to facilitate the testing, as this would meet the employee’s objection and the employee would in principle bear the risk (and expense) of not being able to produce the CAC.
This article was published on 26 November 2021