Finally, there is light at the end of the tunnel! The COVID-19 vaccines have been delivered to the Netherlands Caribbean. The vaccine must ensure that we can go back to normal. For employers, the vaccine can be of high importance in (completely) restoring business activity. That is if everybody gets vaccinated. However, not everybody is willing to do that. Can an employer force its employees to get vaccinated?

The employer’s duty of care and right to issue instructions

An employer is expected to create a safe working environment for its employees. Not all risks can be excluded, but the more likely it is that an employee is exposed to a risk, the sooner it is expected from an employer to take measures to reduce that risk. That is what is called the duty of care of an employer. If an employer violates his duty of care, he is in principle liable for the damage that the employee suffers if such risk becomes a reality.

Since 2020 it has become part of the employer’s duty of care to prevent its employees from becoming infected with COVID-19. For this reason, employers take measures such as the provision of disinfectant in the workplace, the placing of plastic windows, and facilitating working from home.

To implement its duty of care properly, the employer is allowed to impose obligations to its employees. An example of this is the obligation of wearing mouth masks. That is what is called the employer’s right to issue instructions. Refusal to follow the instructions of the employer can result in sanctions such as; wage suspension, suspension, and possibly even dismissal.

Fundamental rights of the employer

The right to issue instructions does have its limits. The interests and rights of the employees must be respected at all times. Included in these interests and rights are the fundamental rights of the employee, also known as human rights. These are, amongst others, laid down in the fundamental law of the countries within the kingdom and in the European Convention on Human Rights (ECHR).

From case law, it can be concluded that injecting the vaccine infringes the right to privacy and the right to inviolability of the body. These fundamental laws are amongst others, laid down under article 8 of the ECHR.

However, the violation of a fundamental right does not automatically mean that compulsory vaccination is not allowed. Nonetheless, the infringement can be justified. The question, therefore, is whether an employer can use its right to issue instructions to oblige the COVID-19 vaccine, or if it not possible because it violates the fundamental rights of the employee.

Legitimate infringement

The fact that an act violates a fundamental right does not always imply that such an act is prohibited. When someone goes to jail, it violates the right to freedom. However, this infringement is justified because the person committed a criminal act. The same principle applies to an employer.

An infringement can be justified when; (i) it has a legitimate purpose; (ii) the infringement was foreseeable; (iii) the infringement is inevitable; and (iv) it is impossible to achieve the goal in a less intrusive way.

In employment law, legal proceedings are regularly initiated about a violation of the fundamental right in article 8 ECHR; right to privacy. An example of this is legal proceedings regarding a hotel in Aruba where its employees were obliged to do a drug test every now and then. This was part of the hotel its strict anti-drug policy, to maintain its good reputation. One of its employees who tested positive on cocaine and who was dismissed with immediate effect, initiated proceedings against the hotel. According to her, the anti-drug policy made an unjustified infringement to her privacy, because this enabled her to use drugs in her spare time, without having the risk to be dismissed with immediate effect. The traces of cocaine, that she had used in her spare time, were still visible in the days after she had used the substance.

The Supreme Court concluded that indeed the privacy of the employee had been violated, but not in an unjustified manner. The hotel was allowed to protect its good reputation by having a zero-tolerance anti-drug policy. This was considered a legitimate purpose. The infringement was foreseeable since the regulation was part of the employment agreement. The drug tests were necessary to serve their purpose because according to the Supreme Court, this was the only way to establish whether an employee had used drugs. It was impossible to achieve the goal in a less intrusive way, said the Supreme Court. In conclusion, according to the Supreme Court, it was a justified infringement.

The same conclusion was drawn by a judge in a case where the employer obliged its employees (firefighters) to take a blood test that contributed to the protection of their health. The fact that the concerning employee had a fear of needles, did not carry sufficient weight for the Supreme Court.

A case more related to COVID-19 was ruled by a Dutch judge, who at the beginning of this year, concluded that the employer, in the context of his right to issue instructions, is allowed to oblige its employees to wear a mouth mask in the workspace. Although there was a violation of the right to inviolability of the body, the judge ruled that the interest of protecting its employees and customers from COVID-19 overrides the fundamental law, even though there is no scientific evidence of the effectiveness of those mouth masks. The employer is legally obligated to protect the individual interests of its employees by assuring a safe and healthy working environment. This implies, according to the judge, that the employer should do whatever he or she can and what is within its powers during the corona pandemic, to avoid its employees from getting infected in the workspace. In this regard, the judge also took into account the economic consequences of sickness or quarantine in case employees get infected.

The employer’s compulsory vaccination

But what about the vaccines? In theory, the COVID-19 vaccine is somewhat comparable to a drug test or blood test. Obligating a vaccine is, however, a more radical infringement. Something is being administered into the body, instead of taken from it, the vaccine may cause side effects and the long-term effect are still unknown. Employees who do not want to take the vaccine, usually have a problem with these factors.

The employer must have a compelling reason for such a radical infringement. COVID-19 can have severe consequences, including death, but the risk is not identical to everyone. The greater the chance that the employee gets infected and gets very ill, the greater the chance that employers are expected to take such radical measures. For example, an employer who works at the hospital has a greater duty of care regarding COVID-19 compared to for example a gardener. An employer with many employees that have a greater risk has a greater duty of care regarding COVID-19 than an employer with a young and fit team with fewer chronic diseases. Thus, it depends on the circumstances of the employer and whether the employer has a legitimate goal to oblige its employees to get vaccinated.

The next question is whether there is sufficient foreseeability. Are the employees able to expect such infringement? In all likelihood, there are no employment agreements (yet) in which anything has been agreed upon about the COVID-19 vaccines. Nor does the law or case law offer a solution at this moment. Vaccination is not required by law and no employers have yet been taken to court over compulsory vaccination. However, there is a lot of talk and writing about compulsory vaccination, especially in sectors such as healthcare. In addition, employment agreements for healthcare personnel sometimes state that they are required to take an annual flu shot or for oral healthcare workers that they must be vaccinated against Hepatitis B. If such agreements are indeed prescribed, the foreseeability requirement will in all likelihood be met more quickly. After all, the employee will then know that a breach can be committed.

The foreseeability will thus depend on the situation and the sector of the employer.

The necessity can be disputed. In determining whether there is a necessity to implement compulsory vaccination, the employee’s interest and the employer’s interest should be weighed. The greater the likelihood of serious consequences, the greater the employer’s interest. Again, there will be a big difference between employees who are in the office, and, for example, healthcare personnel. It will not soon be considered necessary to vaccinate office workers. There are also more alternatives available. The necessity requirement is therefore closely related to the last criterion; can the employer take less drastic measures? When the risk of infection on the work floor is very high, there are few or no alternatives for the employer. If the risk of infection on the shop floor is low, the employer will be able to get by with measures such as working from home, social distancing, good hygiene, or the obligation to wear a mouth mask.

Moreover, it is important to look at the interest of the employee. The usage of cocaine in her spare time is not a very great interest for an employee and apparently, neither is a fear of needles. What if the employee presents more valid interests, such as the fact that the long-term effect of the vaccine is still unknown and the fear of the side effects?

In this respect, how much weight the employee’s interest carries will depend on the reason why an employee refuses a vaccination. If it is the interest of, say, a hospital to protect its employees and patients that is weighed against that perhaps that weighs more heavily.

In addition, it will also depend on the severity of the sanction imposed by the employer if the employee refuses to comply with the employer’s instruction. Does the employer assign the employee other work or does it proceed to dismiss him? The heavier the measure, the sooner the breach may be deemed disproportionate.

We must therefore conclude that there is no simple answer to the question of whether an employee can impose a vaccination obligation on her employees. This depends on many factors, including the sector of the employer, working conditions, and the circumstances of the employees themselves. However, we can conclude from the case law that it is not inconceivable.

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