Several employers ask employees to work from home if they cannot show a valid QR. The question is whether this is allowed?
Employers and employees should behave as good employers and good employees. This means that they must take each other's interests into account. Undoubtedly there can still be discussion about the necessity or reasonableness of far-reaching prevention measures at work, especially if the measures in society are further relaxed.
Good jurisprudence must facilitate practice. If employers and employees cannot find a suitable solution, the judge can provide customised solutions by taking into account the specific circumstances of the case. Practitioners also look forward to guiding court rulings.
Employers will invoke their legal duty of care for a safe working environment. If the virus were to resurface, unvaccinated people would have a greater chance of becoming infected and passing on the virus. Furthermore, under the Working Conditions Act, employees are also obliged to take care of their own and other people's health and safety at work, according to the employer's instructions.
But in the absence of a legal provision, employees can refuse vaccination. They can also refer to fundamental rights (protection of private life, inviolability of the body, freedom of belief and religion) to prevent unequal treatment. The use of a corona access card in the workplace could indirectly encourage vaccination.
In sectors in which a corona access card have been compulsory for visitors and customers since 25 September 2021, there is explicitly no legal obligation for employees to show a valid QR code.
Incidentally, the Cabinet is currently exploring legislation that would allow the exception for certain categories of employees to lapse under certain conditions. Employers will also have to be able to substantiate their interests. However, if there is an objective and reasonable justification (for example, the protection of health or the rights and freedoms of others), unequal treatment of non-vaccinated persons is conceivable, provided it does not constitute a disproportionate infringement of fundamental rights. A restriction on a fundamental right may not go beyond what is strictly necessary to achieve its purpose. Employers are therefore also expected to make efforts to find less far-reaching alternatives.
In practice, no action is taken against employers in the care sector who also use the corona access card for employees.
The government has now also indicated that employers may ask employees whether they have been vaccinated, if there is a good reason to do so.
A better question would be whether the employee has a valid QR code, so that employees who opt for a (daily) PCR or antigen test or who are cured of COVID-19, can also use this. When asking for the QR code, the employer must have a clear plan on how to act, for example if the employee cannot or does not want to show the desired QR code, which is allowed.
Part of such a plan may be to offer the employee a voluntary self-test or to request to work from home. So, if working from home is an option for employees, asking for a QR code could already be a suitable means of reducing health risks for employees and third parties. Especially if infection rates rise again.
The implementation of access controls at work, in combination with a selective obligation to work from home in case of a refusal to show a QR code, is strictly speaking not processing of special personal data if no registration takes place.
After all, in the case of a request to work from home, the fact that employees do not have a decisive say in the location where they carry out their work, can play a role. However, there will have to be compelling reasons for a different arrangement of the workplace, or the employer will have to come up with a reasonable proposal. Here, the interests of both parties must be carefully considered, including the impact of the change. But if the measure to work from home is temporary, the consequences may be less drastic, also because employees can − at present − get themselves tested free of charge.
In addition, there could be less room for individual interests if, for example, clients of the employer impose access requirements on the employees which they cannot meet without a valid QR code.
Clearly asking for a QR code in combination with selective home working can also be considered not to serve a legitimate purpose or not to be necessary. For example, if employees have little or no contact with others. Or if infections can also be prevented in a less drastic way.
In short, employers and employees do operate in a grey area. A difference of opinion can lead to a disturbed working relationship. There is also the question of who can be blamed − possibly severely − for that. The latter may affect the amount of severance pay to be awarded to the employee.
Perhaps the greatest challenge for employers, also taking into account the desired culture in the workplace, is to prevent conflicts about prevention measures in the workplace.
Anita A. de Jong is a partner and head of the Labour Law department of Hogan Lovells International LLP in Amsterdam.
Authored by Anita de Jong.
