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No jab, no job: appropriate stance in Belgium?

  • Belgium

    26-01-2021

    Like most vaccines in Belgium, vaccination against COVID-19 is completely voluntary. At least 70% of the Belgians should be vaccinated in order to maximise the effectiveness of the vaccine in the population and to create group immunity. Belgium aims to vaccinate 70 percent of population by end of summer.

    Today, it is mandatory to work from home in Belgium. If this is not possible, specific measures should be respected at work (social distance / masks / hand and respiratory hygiene / cleaning of workplaces, work equipment and social facilities / ventilation and aeration).

    Now that vaccines will be more and more available, there are questions that rise for employers. Below we have answered the most important ones:

    Can we force an employee to get a vaccine?

    The employer cannot oblige the employees to be vaccinated against COVID-19. Enforcing a vaccination would violate the right of private life and the right to physical integrity guaranteed by the European Convention on Human Rights and the Belgian Constitution. It could also infringe the right of freedom of religion and belief.

    This would only be possible on a legal basis. Today, the vaccine is not mandatory. If rendered mandatory, there should be legitimate purpose and this should be proportionate.

    What are the obligations of the employer with regards to COVID-19?

    The employer should perform a specific risk analysis with regards to the exposure to COVID-19 in the company. An internal prevention plan should be drafted on the basis of the results of the risk analysis.

    In view of the continuity of the company, the employer should strongly encourage a vaccination against the COVID-19 virus for people who are not immune against the virus, however it is very important that this is done without putting pressure on the employees to accept this offer.

    For example, the employer could, in consultation and collaboration with the company doctor, organize the vaccination at company level for those employees who voluntarily choose to do so (as is often done with the flu vaccination). The employer could also organize an awareness raising campaign at company level in the hope that employees will be vaccinated as much as possible voluntarily.

    Can an employer refuse the access to the company premises if the employee refuses the jab?

    If homework is not a possibility and as long as the employees respect the measures in relation to the spread of COVID-19, the employer cannot refuse the access to employees who refused the jab.

    Can the employer check whether someone has been vaccinated?

    Whether or not an employee has been vaccinated is data about someone's health and therefore sensitive. The General Data Protection Regulation stipulates that these are special personal data. The processing and use of this data is in principle prohibited and subject to special conditions. On the basis of the principles of confidentiality, data minimization and proportionality, it is not possible to maintain a list of employees who have (or have not) been vaccinated. This also applies to the disclosure of the identity of employees who have (or have not) been vaccinated. Communicating the names of employees is considered undesirable, unnecessary and would often have a stigmatizing effect on employees who have not been vaccinated. This view is also in line with a recent opinion of the Belgian Data Protection Authority with regard to the communication of the names of infected employees, published on its website. Another recent opinion from the Belgian Data Protection Authority also states that an employer cannot oblige employees to take a COVID-19 test since it breaches their physical integrity and since there is no legal basis.

    We believe the employer can only ask the employee whether he or she has been vaccinated, if and only if the employee can freely refuse to answer.

    No jab, no job? Change the function of the employee?

    The termination of the employment contract of the employee who refuses the vaccination may constitute a discriminatory dismissal (based on the health situation of the employee) or a manifestly unfair dismissal.

    However, whether or not the employee would have a valid claim depends on the concrete circumstances. A dismissal is not manifestly unfair in the event it is justified by the necessities of the company. If the employer could demonstrate that homework is not an option, that he did a risk analysis and that from the prevention plan, it is clear that vaccination would be crucial in order to ensure the health and safety at work, it may be in particular circumstances that the termination is not discriminatory nor manifestly abusive. It will really depend on the concrete circumstances. This is a very delicate exercise to do.

    Unilaterally changing temporarily the function without the agreement of the employee, would in principle, not be possible as this could be regarded as a constructive dismissal due to the change of an essential employment condition. Also, in this event a judge would need to rule if this is indeed an important change to an essential employment condition which goes beyond the ius variandi of the employer. In normal times, this would be the case but, the interpretation may be different considering the current crisis.

    This will be a balancing of the rights of the employer against the rights of the employee, which will most certainly lead to new discussions.

    This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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