Employment FAQs: vaccinations, face masks, remote working, wages and dismissals

The covid-19 pandemic has raised numerous questions regarding the rights of employers and employees. This article answers some frequently asked questions about the circumstances in which employers can demand workers to be vaccinated, wear face coverings and prohibit working from home and travel abroad. Wages, dismissals and the employee's right to refuse certain demands are also discussed.

1. Can employers require vaccination of staff?

First, a distinction must be made between a direct and indirect obligation to be vaccinated. A direct obligation is not permissible in the Netherlands, meaning that an employer cannot require an employee to be vaccinated against covid-19. However, an employer can state that vaccination is a requirement for employment, which constitutes an indirect obligation.

In certain circumstances, it may be essential for an employee to be vaccinated, such as in the healthcare sector, where health is paramount, and employers can require vaccinations. This is permitted under the Working Conditions Act, which stipulates that an employer must ensure a safe working environment that protects employees against sickness and the incapacity to work.

Vaccination and testing obligations can, in principle, be included in contracts, but this freedom is limited by the fact that vaccinations are not mandatory in the Netherlands and enforcing medical procedures would put human rights at stake.

Later in 2021, the Dutch courts are expected to inform their decision on mandatory vaccines based on the ECHR's judgment. If indirect vaccination obligations are allowed, then a new obstacle arises: privacy. An employer will have to register whether an employee has been vaccinated. However, this is prohibited under the General Data Protection Regulation (GDPR) as health data can only be recorded under a specific set of circumstances.

2. Can employers ask whether employees have been vaccinated?

No, the employer is not allowed to ask whether an employee has been vaccinated. Even if this information is provided by the employee, it cannot be recorded as privacy laws forbid employers to collect personal employee data. There will have to be a clearer legal basis before this is possible.

3. Can employers require employees to wear face masks?

From 26 June 2021, face coverings are no longer mandatory in many places in the country. However, in places where maintaining a 1.5-meter distance is not practical, such as on public transport and in secondary schools (staff are not obliged to wear face coverings in primary schools), employees are still required to use masks.

When an employer has a justifiable reason to oblige an employee to wear a face mask, they can do so under the employer's right instruction right. However, employees can refuse if they believe it violates their right to personal freedom. In such cases, the employee must prove that wearing a face mask causes psychological distress or other health risks. The preliminary relief judge in Utrecht and the subdistrict court judge in Assen recently ruled that the prevention of infections in the workplace is a legitimate goal and that the privacy of the employee may therefore be infringed.

4. Can employers prohibit employees from working from home?

Under the Flexible Working Act, an employee can request to work from home instead of at the office, but the employer may reject the request on any grounds. This is different if the employer cannot guarantee a safe workplace. A new private member's bill entitled "Work where you want" was submitted on 27 January 2021, which proposes that an employer may only reject a request if there is a "significant business or service interest" that opposes this change. The employer's responsibility according to the Working Conditions Act to ensure a safe working environment is not limited to the company's premises and encompasses home offices, too. Therefore, employers are advised to set up a clear work from home-policy that is suitable for the employee and for the fulfilment of their duties.

5. Can employers prohibit employees from visiting code orange or code red areas?

The subdistrict court in Limburg recently decided on the employer's rights in this matter. Those returning from a code orange and code red countries are required to quarantine at home for a specified period. If the employee is unable to carry out his/her work duties remotely during that period, then the employer has the right to prohibit the employee's trip in the first place. For example, a construction worker can only work on-site, which would give the employer a compelling reason in the interest of maintaining business to deny travel on the basis that the worker is not fulfilling his contractual duties.

6. Do employers have to continue to pay employee salaries if they have visited code orange or code red areas and have to quarantine?

If an employee is quarantining after travel, the employer must continue to pay their wages if the work can be carried out from home. However, employees such as the construction worker in the above example who cannot work from home will risk not receiving their wages.

7. Can employers dismiss employees for refusing vaccination?

So far, there has been no ruling on dismissing employees for refusing to be vaccinated. While Dutch labour law does not apply in Curaçao, a recent decision by the island nation's Court of First Instance might be used to inform future legislation in the Netherlands as the Court's reasoning demonstrated little scope for terminating employment on the basis of refusing to be vaccinated. The Court declared an employer's instant dismissal of an employee for refusing immunisation against coivd-19 as null and void because demanding vaccination as a condition of continuing employment in the absence of a mandatory vaccination law would infringe on the employee's right to privacy and personal freedom. The Court deemed that the dismissal had no legitimate purpose as the risk of exposure was too small. While the instant dismissal did not hold, a request for dissolution of the employment contract was granted due to a disturbed employment relationship.

For further information on this topic please contact Tessa Lust.