These questions are now arising, with the prospect of a large-scale vaccination programme getting under way next year. Vaccinations will be given on the basis of a priority list.
Can an employer oblige an employee to receive a vaccination? The answer to this question is ‘no’. An employee has a right to physical integrity and this is enshrined in the Constitution. It is therefore up to the employee to decide whether or not to be vaccinated. Vaccination takes place on a voluntary basis.
An employer cannot therefore oblige his or her employees to receive a vaccination. Although the employer has a duty of care with regard to an employee’s health and safety and his or her working conditions, this does not extend to being able to force the employee to be vaccinated. It is also not permitted to put the employee under pressure to receive a vaccination. After all, we are talking here about health data and this is subject to privacy legislation.
Please note:If an employee who has not been vaccinated falls ill, the employer also has an obligation to continue paying his or her salary in this situation.
During a job interview it is also not permitted to ask the candidate whether he or she has been or plans to be vaccinated. After all, this is also health data. Health data is a specific item of personal data whose processing is prohibited, unless a statutory exemption applies. The explicit consent of the employee is insufficient, as – in view of the relationship of dependency – it is possible to question whether the consent was given voluntarily.
An obligation to be vaccinated can only be included as a job requirement if there is a legitimate aim and the means of achieving that aim are appropriate and necessary. After all, this means that a distinction is being introduced between staff who have and staff who have not been vaccinated. As mentioned above, the principle of physical integrity and the right of self-determination apply. Including an obligation to be vaccinated in a job requirement is not justified by a legitimate aim.
If vaccination is essential to be able to carry out the work in question safely, as in the case of a candidate for a healthcare role, the employer can demand that the candidate undergo a medical examination. On the basis of the Medical Examinations Act, it is permitted for the company doctor to ask the candidate whether he or she has been vaccinated. The company doctor will subsequently indicate whether or not the candidate is suitable for the role. The reason for this conclusion is not given.
Can an employer oblige healthcare workers on permanent contracts to receive a vaccination? This is a difficult question to answer, as everything is new when it comes to the coronavirus and there is no case-law in this area. We can infer from past case-law, however, that in such cases the court will often weigh up the individual and collective interests.