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21 April 2021
Can employers force their workers to get vaccinated?
Can employers act against workers who refuse to get vaccinated?
Can employers ask their workers to submit a vaccination certificate?
Are workers entitled to paid leave of absence when they get vaccinated?
Can employers organise a vaccination campaign in their company?
The government's vaccination campaign is now progressing well. Employers are eager to have a large number of their workers vaccinated to be able to work in a safe and healthy environment and resume business as usual. However, can employers force their workers to get vaccinated? Can they ask their workers to submit a vaccination certificate? Must they grant their workers paid leave of absence to get vaccinated? This Q&A answers these and other questions.
No, employers cannot force their workers to get vaccinated as there is no legal basis for doing so.
As the legislation stands at present, vaccination for COVID-19 is not compulsory. The government has decided not to impose a general vaccination obligation on citizens, but to offer them the vaccine on a voluntary basis. Consequently, employers must abide by this 'free choice principle'. Forcing workers to get vaccinated would violate their right to privacy and their right to physical integrity.
No, employers cannot unfavourably treat any worker who chooses not to be vaccinated.
Therefore, employers may not:
Further, as COVID-19 vaccination is not compulsory, there is a risk that any granting of specific premiums or benefits to workers who decide to get vaccinated would be regarded as a type of discrimination and would expose employers to damages payments (of six months of the worker's salary).
For the same reason, it is also impossible to grant non-recurring result-related benefits to workers when a certain percentage of staff have been vaccinated.
No, employers cannot ask workers who declare themselves fit for work to present a vaccination certificate to enter the workplace.
Moreover, the registration or recording of workers' vaccination status constitutes the processing of sensitive health data, which is, in principle, prohibited by the EU General Data Protection Regulation, unless a legal basis would allow for the processing of such sensitive data. However, the Data Protection Authority has held that, at present, there is no sufficiently specific legal basis for justifying the processing of health data regarding vaccination.
Moreover, workers' consent will not be a sufficient ground for employers to process data on vaccination status, as, in principle, consent cannot be freely given in an employment relationship due to the subordinate position of workers with regard to employers.
Therefore, employers cannot process data relating to their workers' vaccination status.
Employers also cannot ask their workers if they have been vaccinated. The Social Penal Code penalises employers' verbal collection of information with the aim of obtaining medical data on workers' state of health for reasons other than their current skills.
Yes, on 9 April 2021 a new law entered into force granting paid short leave to workers so that they can get vaccinated during working hours.
Workers are entitled to short leave for the time needed to get vaccinated. This includes both the time spent at the vaccination centre and the time needed to travel to and from the vaccination site. If workers must get two injections during working hours, short leave will be granted twice. However, if workers decide to get vaccinated outside working hours (eg, during the weekend or a compensatory rest day), the right to paid short leave will not be granted.
To maintain their entitlement to salary during the short vaccination leave, workers must notify their employer in advance of the time of their vaccination appointment.
Employers can ask workers to prove that they used their paid leave to get vaccinated. In this regard, workers must show the document confirming the appointment, including the time and place where the vaccination will take place. If the confirmation letter does not include this information, workers must present their invitation to their employer. However, employers cannot make a copy of the confirmation letter or the invitation or transcribe any of this information, except for the time of the appointment.
Employers may use the obtained information only for the purpose of organising work and ensuring proper payroll administration. Employers may register workers' absence only as 'short leave' without specifying the reason for the absence (ie, for vaccination purposes).
Yes, employers cannot force their workers to get vaccinated but they can raise awareness by encouraging them to get the vaccine and informing them of the advantages (and also possible disadvantages) of vaccination. Therefore, employers can inform their workers about the possibility of receiving the vaccine free of charge and, if necessary, during working hours (in which case they will be entitled to paid short leave).
For some sectors and categories of worker, informing workers and offering them the opportunity to get vaccinated is compulsory.
Following the inclusion of COVID-19 in the so-called 'list of biological agents' in the codex on wellbeing at work, employers which employ workers in activities where they might come into direct contact with biological agents, and thus COVID-19, such as in the food or meat industry or the agriculture or healthcare sector, must conduct a specific risk analysis. If this risk analysis shows that there are certain jobs or categories of worker for whom there is an increased risk of exposure due to direct contact with COVID-19, employers must, among other things and unless the risk analysis would indicate that such action is unnecessary:
For further information on this topic please contact Esther Soetens or Mathilde de Foestraets at ALTIUS by telephone (+32 2 426 1414) or email (firstname.lastname@example.org or email@example.com). The ALTIUS website can be accessed at www.altius.com.
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