The discussion surrounding a vaccination requirement at the workplace is very topical. In the U.S., several companies, such as Facebook, Google and CNN, require their staff to be fully vaccinated. What are the options with regard to the vaccination requirement for employees and independent contractors for companies in The Netherlands?
- No legal basis for mandatory vaccination
Based on the Dutch law, the employer may not oblige the employee to be vaccinated. The employee can invoke the right to private life – including physical integrity – and the right to inviolability of the body. Exceptions to these fundamental rights are only possible if regulated by law and currently there is no legal basis for a mandatory vaccination for COVID-19.
Thus, an employer may not oblige the employee to be vaccinated and can therefore not refuse non-vaccinated employees or employees who do not show proof of vaccination. This can, in specific cases and/or circumstances, be different if the employee can no longer perform his/her work (safely) without vaccination. This could be the case if:
- An unvaccinated employee poses a risk to the health of colleagues and third parties; and
- The health of colleagues and third parties cannot be guaranteed in any other way (by following the guidelines of the RIVM and, where applicable, provide the employees with the necessary personal protective equipment).
This exception does not seem to occur most companies. In most cases, there are other (less drastic) alternatives (than making vaccination mandatory) available to protect the health of the employees. For example in cases that it is possible for the employees to keep a 1,5-meter distance during work. It therefore seems unlikely that the exception is frequently applied, but specific information about the reason for introducing a vaccine mandate is needed.
1.2 Independent contractors
Under Dutch law, the protection under employment law applies to the employee, but not to the independent contractor. For example, the employee is protected against dismissal under Dutch employment law. The protection against dismissal does not apply to the independent contractor. In principle, the client and contractor are free to make agreements. The principle of freedom of contracts applies between these parties.
Please note that there is no clarity and no case law on this issue yet. However, in our opinion it is possible to impose the condition that the independent contractors must be vaccinated. However, this cannot be made obligatory (and therefore the condition to be vaccinated cannot be legally enforced). Since the fundamental rights (such as the right to private life and the right to inviolability of the body) also plays a role in the relationship between the client and the contractor, it comes down to a balancing of interests. To impose the condition on both current and future independent contractors, the principal must demonstrate a legitimate purpose and the introduction of the condition to be vaccinated must also be appropriate and necessary. If the same result can be achieved in a less far-reaching manner, the conditions of appropriateness and necessity are not met. For example, the principal can consider the use of protective equipment or to start a vaccination campaign to encourage the independent contractors (and employees) to be vaccinated. In the balancing of interest, a substantial factor for the principal is also whether it has a clear and known policy about vaccination and protective measures.
Please note that whether a current contract for services can be terminated if the independent contractor does not get vaccinated cannot be answered unequivocally. In our opinion, this is in principle not a ground for termination; it will depend on the specific circumstances. It would be easier to impose the condition that independent contractors must be vaccinated when entering into a new contract for services.
It is also important to note that there may be some risks if the principal makes it a condition that independent contractors must be vaccinated. A risk arises when it turns out that the independent contract is actually an employee (a so-called pseudo self-employed person). Another risk is (indirect) discrimination, for example if it turns out that the person in question does not get vaccinated because of his/her religious conviction. This also relates to the question whether the principal is allowed to ask if the independent contractor has been vaccinated or not.
- Privacy issues
The Dutch privacy law prohibits the processing of health data, including the processing of data concerning vaccinations. This means that an employee does not have to tell his employer whether or not he has been vaccinated and an employer may not ask. If the employer does ask, the employee is not obliged to answer. Even if the information is already known, the employer may not process it (even if the employee gives his consent). The moment the information is processed in (for example) a personnel administration, this is regarded as prohibited processing of special personal data.
Only the company doctor is allowed to ask about vaccinations and other medical data, if there is a good reason to do so. The employer can therefore, if it is relevant to the position, ask the company doctor to inquire about the vaccination status. However, the doctor is not allowed to share this information with the employer.
2.2 Independent contractors
At this moment, we are of the opinion that a principal may ask independent contractors whether they have been vaccinated or not. However, please note that privacy rules prohibit the processing of this information in relation to vaccination. According to the law, this is data concerning health which qualifies as personal data that is prohibited to be processed. In practice, this means that the principal cannot check whether the person has actually been vaccinated. The principal is not allowed to process the answer to the question whether the person has been vaccinated either.