“Of course employers can ask whether you have been vaccinated,” Minister De Jonge stated firmly yesterday during the umpteenth corona press conference. But is this correct? From a legal point of view, he is right with this, explains employment lawyer Maarten van Gelderen. “The law does not state that you should not ask the question. An employer does not violate any specific statutory provision and does not have to pay a fine, for example,” says Van Gelderen.
Despite this, opinions are divided about whether only questions are allowed. Last year, the Dutch Data Protection Authority stated in De Volkskrant that as an employee you should not be asked that question at all, because your privacy is at stake.
Also in view of the power field between employer and employee, asking the question in itself is not pure. “If you want to go safe as an employer, you shouldn’t even ask,” emphasizes fellow employment lawyer Pascal Besselink. “By doing so, you would put the employee, who is in a dependent relationship with his employer, in a position in which he can no longer or does not dare to answer freely.”
This applies, for example, to employees with temporary contracts or on-call contracts who depend on the employer whether they extend such a contract, or whether they are still called for work.
In addition, this medical information about personnel for large personnel files only makes sense if you can also register it. For making rosters, dividing staff among certain (vulnerable) customers, for example. Then it is only useful if it can be systematically made transparent on a large scale.
But such registration is not allowed by law. The General Data Protection Regulation (GDPR) states that the processing of what the law calls ‘special personal data’ is not allowed. Van Gelderen: “You cannot include that data in your HR registration or personnel file. For larger organizations it is therefore practically pointless to ask the question, because processing of the answers is prohibited by law.”
Call is getting louder
The call from employers to be given more freedom in questioning and registering the vaccination of personnel is getting louder. Healthcare institutions in particular feel a need for this. The Rijnstate Hospital in Arnhem previously argued that it only wants vaccinated staff to work in wards with vulnerable patients. The hospital administrator therefore called on the cabinet to make it legally possible for employers to ask for and register the vaccination status of employees.
Unions of healthcare workers, however, see little point. Professional organization NU’91 previously announced that it was “unpleasantly surprised” about this plan. “These are medical data, and healthcare workers must be treated with the same conditions as other people. We find it regrettable that the cabinet is doing this,” chairman Stella Salden told the ANP.
FNV also criticizes. “Apart from the fact that we do regard this as indirect coercion and regardless of our great concern about what this means in practice and in a practical sense: it will not help to convince the last few percent of employees in care,” said FNV. Vice-Chairman Kitty Jong.
Nevertheless, De Jonge seems to want to open the door for registration. “We want to offer those employers (in healthcare, ed.) the opportunity to record whether someone has been vaccinated,” he said during the press conference yesterday. “He seems to be hinting at the fact that the cabinet is working on creating a legal basis for this,” thinks Maarten van Gelderen.
This can be done by setting up new legislation. Or by stretching existing legislation, by recording exceptions to the applicable GDPR. “For example, if it is of major importance for public health to process the vaccination data. That could soon be seen as an exception,” says Van Gelderen.
Neighboring countries go much further
Our neighboring countries – where the AVG is also in force – have already done so. With the AVG in hand, Belgium, France and England, among others, made a vaccination registration for healthcare personnel mandatory. And not much later, a vaccination obligation even came into effect. Healthcare workers who do not have to be vaccinated are suspended in France, without continued payment of their salary.
The Dutch cabinet has repeatedly vowed not to let it get that far here. But even within current applicable legislation this is possible – also in our country.