COVID-19 vaccination and testing in the Netherlands - employment law perspective

  1. Vaccination
    1. 1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 
    2. 2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?
    3. 3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?
    4. 4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?
    5. 5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).
    6. 6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 
    7. 7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?
    8. 8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?
    9. 9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.
    10. 10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 
  2. Testing
    1. 1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 
    2. 2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?
    3. 3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?
    4. 4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?
    5. 5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Vaccination

1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 

The employer can always raise awareness and inform its employees of the benefits of a COVID-19 vaccination. Furthermore, the employer can encourage employees by providing flexibility in allowing them to be inoculated during working hours, but an employer is obliged to continue payment of wages in case of an employee's medical appointment – such as a vaccination – which reasonably cannot be scheduled outside of working hours.

A financial incentive could be implemented under certain circumstances, which discrimination (either direct or indirect) into account, such as discrimination based on religious or health-related grounds. Moreover, GDPR considerations should be taken into account. In order for an employer to verify which employees have been vaccinated and are entitled to financial rewards, health related data must be processed, which is prohibited under the GDPR (please see below under question 3).

2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?

Currently, the COVID-19 vaccination programme is organised by the Dutch government, meaning that it is not possible to offer vaccinations to employees in any way or support the vaccination programme of the government.

There may be an obligation in the future to offer COVID-19 vaccines in the event that people are regularly vaccinated against COVID-19. Based on the Dutch Working Condition Decree, the employer is obliged to offer a vaccine to protect any employee (who is not immune) from exposure to biological agents (e.g. infectious, allergic or poisoning diseases). The Dutch Centre for Occupation Diseases has provided a list that sets out the vaccines that should be offered to employees based on the nature of their working activities (see the VIZIA-list on the website of KIZA). The list sets out the types of infections employees can get based on their role or working environment. The COVID-19 vaccine is not yet included on the list.

3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?

No. By verifying the employees who have been vaccinated, the employer is processing health-related personal data. Health-related personal data falls under the special categories of personal data, which the GDPR prohibits an employer from processing. The employer is also not allowed to register this data in any way.

4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?

No. Since this information is considered health data, employees have no duty to inform employers whether they have been vaccinated.

5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).

No. It is not possible for an employer to mandate employees to be vaccinated against a disease as a condition of employment, as this is contrary to the right to privacy; the right to freedom of thought, conscience and religion; and the inviolability of the body. There is no mandatory legislation applicable that obligates people to be vaccinated under Dutch law. The Dutch government does not intend to implement a mandatory obligation such as this in the Netherlands for COVID-19 vaccinations. This obligation also does not exist for certain high-risk professions such as employees in the health sector.

6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 

Yes. It is possible for employees to refuse to be vaccinated and they are not obliged to give reasons for their refusals. As mentioned in question 5, there is no mandatory obligation for employees to be vaccinated or to give reasons for a refusal to be vaccinated.

7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?

In general, it is not possible for the employer to exclude employees from the physical workplace if they have not been vaccinated. This exclusion would constitute indirect discrimination. 

In the opinion of the Dutch Health Council dated 4 February 2021, the possibility of implementing proof of vaccination is possible under certain strict circumstances. However, the Dutch Health Council has requested that the Dutch government provide either a legal valid basis or order an additional guidance to be issued in order to implement this measure. The government has not yet responded to these recommendations.

8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?

No. In general, it is not possible for the employer to instruct non-vaccinated employees to perform different duties. 

However, if the employer can demonstrate that non-vaccinated employees can be considered high-risk to other vulnerable employees or third parties, and that vaccinations are necessary for the protection of these groups, it might be possible to assign non-vaccinated employees to different duties. The employer will then also have to demonstrate that there are no other measures that can achieve this same level of protection, such as the use of protective clothing or face masks. The assignment of non-vaccinated employees to different duties will likely only be considered in high-risk sectors such as the healthcare sector. The employer should discuss the assignment of different duties with the employee and the company doctor.

9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.

If employees must travel to a country where a negative COVID-19 test is required, the employer can arrange for the employee to be tested by the company doctor.

Currently, no proof of vaccination is required to enter the Netherlands. In the Netherlands, an entry ban currently applies to countries outside the EU or Schengen area, including the UK, except for certain exceptions.

However, if travelling to the Netherlands, you may be asked to present certain documents. Applicable to almost all travellers is the requirement to demonstrate an official negative PCR test result for COVID-19. Travellers coming from high-risk countries by aircraft or ship may be asked to present the result of an official negative rapid test, which has different requirements than a PCR test. In conclusion, when travelling by air to the Netherlands, you may be asked to complete a Health Declaration Form. After your arrival in the Netherlands, a ten-day quarantine obligation could also apply, depending on the country you are travelling from. 

10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 

There may be European and Dutch legislation in the future on the use of vaccination certificates.

Furthermore, the Dutch government facilitates preventive testing at work and at home which is expected to increase safety in the workplace. 

Testing

1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 

No. It is not possible for the employer to oblige an employee to take a preventive COVID-19 test. Employees are protected by the right to privacy and the inviolability of the body. Currently, there is no Dutch legislation that provides an exception to these fundamental rights for testing. Moreover, the employer is also not allowed to put pressure on the employee to be tested. Testing will always have to be done on a voluntary basis.

2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?

There are no guidelines specifying how often testing should take place, as there is also no legal basis for mandatory testing. Voluntary preventive testing in the workplace should be performed by the company doctor or occupational health and safety service. Testing should be performed independently of the employer. This company doctor will share the results with the employee and only provide the employer with the necessary information pn the employee's ability to perform work. The government will provide self-test kits in certain industries that will allow employees to take a COVID-19 tests in the workplace.

3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?

No. Since a COVID-19 test result is considered health data, the employee has no duty to inform the employer whether he or she has been tested. Under the GDPR, the employer is prohibited from processing this data since the test results are considered health-related personal data. 

However, if the test result is positive, the employee is strongly urged to remain in home quarantine according to those measures set down by the government and to inform the Joint Health Service. If an employee has exposed other employees to possible infection, the company doctor of the employer should also be informed. In practice, the employee informs employers automatically. In cases of positive COVID-19 test results, the Joint Health Service investigates those individuals the infected person has been in contact with. Employers are advised to ensure that the contact details of employees who have been at work and have become infected are shared with the Joint Health Service. This will allow the employer to mitigate the consequences of a positive test at work. 

4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?

Yes. It is possible for employees to refuse to be tested and they are not obliged to give reasons for their refusals. Currently, there is no legal obligation for employees to be tested or to give reasons for their refusal. Therefore, testing cannot become a mandatory condition of employment.

However, if an employee experiences symptoms, the employee can be sent home by the employer and is obliged to follow the instructions of the company doctor.

5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

No. In general, it is not possible for the employer to instruct employees who are unable to present negative COVID-19 test results to perform different duties.

However, if the employer can demonstrate that these employees should be considered high-risk to other vulnerable employees or third parties and that testing is necessary for the protection of such groups, it might be possible to assign these employees to different duties. The employer will then also have to demonstrate that there are no other measures that can achieve the same level of protection, such as the use of protective clothing or masks. The assignment of employees who do not want to be tested to different duties can only be considered necessary in high-risk sectors such as healthcare.

The employer should discuss the assignment of different duties with the employee and the company doctor.