Testing during corona: what is an employer allowed and what is he not allowed to do?

There is a lot of uncertainty among employers about what is and is not allowed with regard to testing and/or questioning employees, or imposing an obligation to vaccinate. In this Q&A we provide insight into the current state of affairs and also into the government's plans to introduce the corona admission ticket as a means for employers to ask employees whether they have been vaccinated, recovered from Covid-19, or tested negative. The aim of this is to increase safety in the workplace and to limit the number of infections (and therefore the pressure on healthcare) in the interest of general public health.

It is good to emphasize that the government's plans are at the stage of a bill, so it is not yet law. Discussion of the bill is scheduled for the coming weeks. This Q&A is largely based on this bill as submitted to the House of Representatives on November 22, 2021. It is quite possible that the final law will differ from the bill and the information in this Q&A. We will of course keep you informed of further developments.

Q. What is a corona admission ticket?

A. A corona admission ticket ("CTB") is a system introduced by the government, which can be used to check whether a person has been vaccinated, cured of Covid-19 or has tested negative using a QR code. The current CTB system in the Netherlands is based on the 3G policy (vaccinated, cured or tested). The government has plans to introduce a 2G policy (access based on vaccinated or cured) in certain sectors if the 3G policy in combination with other measures does not sufficiently limit the number of infections. This Q&A is based on the 3G policy.

Q. How does the CTB work?

A. The CTB is available via the so-called corona check app that can be downloaded digitally and shows a QR code. A paper version is also possible. A scanner can also be downloaded - also digitally - usually on a mobile phone. This scanner can scan the QR code and indicate whether the person has been vaccinated, cured of Covid-19 or tested negative. Formally, the controlling authority should also check whether the data in the corona check app corresponds with the data on the identity card.

Q. Where can a CTB currently be used?

A. The Public Health Act (“WPG”) stipulates that use of the CTB is limited to a number of specific sectors: culture, events, organized youth activities, catering and sports. The new bill states that other sectors can also be designated by ministerial regulation where the CTB will apply.

Q. And to whom does the CTB apply in those sectors?

A. While it currently only applies to visitors, the bill provides that the CTB can soon also be used for employees in the aforementioned sectors.

Q. Can the CTB also be declared applicable to employees and employers?

A. Yes, the intention is that the WPG will be amended in such a way that a CTB also applies to companies and institutions outside the sectors currently defined by law.

Q. Can the government soon oblige employers to ask employees about a CTB?

A. That is the intention. When the government believes that the importance of public health is so great, it can, following the example of other European countries, impose a CTB. It is a sensitive discussion in the Netherlands, but the cabinet has indicated that it is investigating the possibility of legislation to introduce a CTB in the workplace.

Q. Can an employer also ask for a CTB if the government does not make a CTB mandatory?

A. The intention of the bill appears to be that employers can only request a CTB if the government has designated the sector in question for this purpose. The government has also previously hinted that there could be a role for the social partners (employers and employees), although we note that the trade unions have so far been adamantly opposed to far-reaching control measures in the workplace. The question is therefore whether it makes sense to leave this important subject to 'the polder'.

Q. Can an employer ask its employees if they have been vaccinated?

A. That is allowed; asking the question is allowed. But the employee is not obliged to answer.

Q. Doesn't that question violate the GDPR?

A. If the employee is only asked whether he or she has been vaccinated, this does not conflict with the GDPR. The GDPR applies as soon as personal data is processed. Asking a question does not constitute processing and is therefore not covered by the GDPR. But if the employer were to register this, personal data would be processed and the GDPR would apply. An additional aggravating circumstance is that the vaccination status concerns the health of an employee and this data may only be processed in exceptional cases and then only by the company doctor (or someone else with professional secrecy). Changes are also expected on this point if the bill is introduced.

Q. How does a mandatory CTB relate to the fundamental rights of employees?

A. In this situation there may be a conflict of fundamental rights. However, fundamental rights are not absolute, a limitation is possible if there is a legal provision for this. With regard to the bill, the government has requested advice from, among others, the Netherlands Institute for Human Rights about any possible infringement of fundamental rights and this advice has been taken to heart. In short, it means that - because the infringement of a CTB in the workplace is currently limited to the mandatory testing of employees - the infringement is limited and the introduction of the CTB in the workplace is justified.

Q. Are there other options than a CTB to arrange access to the workplace?

A. The bill introduces an exception to a CTB for certain sectors, namely in cases where the employer ensures a comparable level of protection to that of a CTB in a different manner, determined in a ministerial regulation. The definition of the concept of 'comparable level of protection' will be elaborated by ministerial regulation.

Q. Is approval by the Works Council required when introducing a CTB in the workplace?

A. Absolutely. The Works Council has the right of consent, because there is a regulation in the context of working conditions. The explanatory memorandum to the bill does note that if the CTB is not necessary because there is a comparable level of protection, no approval from the Works Council is required.

Q. If an employee cannot provide a CTB, may they be denied access to work?

A. Yes, that is allowed. That is precisely the intention of the introduction of the CTB: in order to prevent the risk of infection in the workplace as much as possible, the intention is to deny employees without CTB access to work.

Q. Will this employee be sent home?

A. If there are no other alternative activities available that can be carried out without the risk of contamination (whereby a possible temporary job change must also be investigated), the employee may be sent home.

Q. What about working from home?

A. If there is an option to work from home, this is considered an alternative to being in the workplace. But if the employee working from home subsequently has to appear at work occasionally for consultations, for example, then in principle this employee must also be able to show a CTB.

Q. Can the employer also suspend wage payments if an employee cannot show a CTB, cannot work and is sent home?

A. The main rule in labor law is that an employee retains the right to wages if he does not perform any work, “unless the full or partial failure to perform the agreed work should reasonably be borne by the employee.” If it is the case that:

• an employee refuses to be vaccinated or tested, and
• therefore no CTB can consult, and
• it is also the case that there are no alternative activities available, and
• this employee cannot work from home, and
• Finally, the employer can demonstrate that he has a legitimate interest in refusing the employee access due to safety in the workplace,

then the employer may be able to stop paying wages to the employee who has been sent home. But you see: it is a high threshold that must be overcome by the employer. In addition, an employee can be expected to be tested rather than vaccinated. Refusing a test as a result of which the employee cannot submit a CTB will therefore more quickly lead to the cessation of wage payments.

Q. What about employees with conscientious objections or religious beliefs that prevent them from being vaccinated or tested?

A. Here too, although these fundamental rights of employees must be respected as much as possible, they do not have absolute effect in this situation either. In cases where the employer has a legitimate interest, supported by government policy in the general interest of public health and the introduction of the CTB is necessary, there are no other means to achieve the intended goal and the CTB as a means is not disproportionate is difficult, an employee with conscientious objections can also be expected to show a valid CTB. And here too, testing is much less invasive and will pose less of a violation of employee rights than a vaccination. So the employee who refuses to be tested runs the risk of no longer receiving wages.

Q. And what if an employee cannot be vaccinated or tested for medical reasons?

A. The government has announced that a temporary CTB will be introduced for people who cannot be vaccinated or tested for medical reasons. It appears that this temporary CTB is intended for a small group of people who cannot be vaccinated or tested for a longer period of time for medical reasons. We assume that this temporarily gives CTB access to the work floor just like a 'normal' CTB.

If the employee is incapacitated for work and for that (medical) reason cannot (temporarily) be vaccinated or tested in order to perform (reintegration) work, then this is in fact a situation in which the inability to work results from incapacity for work if as a result of illness or disability. The employer would be wise to ask the company doctor to advise whether the employee is actually incapacitated for work due to illness or disability and is unable to be vaccinated or tested. And if that is the case, this employee will in principle retain his right to wages, despite the fact that he cannot show a CTB.

Q. And can an employee be dismissed if he cannot show a CTB?

A. Dismissal is really the toughest and last measure imaginable in this situation. But if all options have been exhausted for the refusing employee who cannot show a CTB, cannot or does not want to perform alternative work while stopping wages does not offer a solution, then a dismissal may be in order. With regard to the question of whether an employee is eligible for severance pay, it is conceivable that an employee who systematically refuses to be vaccinated or tested is acting seriously culpably and is therefore not entitled to compensation. It is all still somewhat speculative at the moment, because there are no practical examples in case law yet.

Q. As an employer, can I prepare for the introduction of the CTB?

A. We recommend that you make the necessary preparations now, even though the bill has not yet been passed into law. Because all kinds of issues will have to be arranged. For example, who will carry out the actual checks on employees, or how will you do this with the processing of the data? Or how to deal with employees who cannot show a valid CTB? It is important that employers draw up a policy - in consultation with the Works Council - that includes, for example, a weighing of interests, why the company will apply the CTB and what the consequences are of not being able to show a CTB.

Q. What responsibility does the employer have regarding testing?

A. Since a negative test certificate is only valid for 24 hours, an employee who has not been vaccinated will have to be tested very often in order to submit a CTB. That is his own responsibility. It is also easy to arrange and free of charge, so an employee cannot use that as an excuse. But if it is not easy to arrange (for example due to a large distance to the test location), it could be worthwhile for the employer to facilitate the possibility of testing, because then the employee's objection will be met and it will not be consultations with the CTB may in principle be at his risk (and expense).

Also see: Corona measures: questions and answers for entrepreneurs

(Source: Vestius Advocaten)