COVID-19 vaccination and the workplace

26 Mar 2021
Subject Tax alert
Jurisdictions Belgium

As the vaccination process is picking up steam throughout the country, questions are now raised as to what the employer can or cannot do to encourage vaccination of its workforce. Hereafter we review some hot points in that regard.

1. Can an employer force its employees to be vaccinated?

As a general rule, a vaccination can never be forced upon by an employer. There are however few exceptions laid down by law for some employee categories who are exposed to certain specific health hazards when performing their work. In order to protect them against illness and infection during their work, a particular vaccination or test may be mandatory. As the vaccination implies a – minimal – invasion of the body of the individual, the cases where it can be required should be grounded on solid legal justification.

With exception to those vaccinations laid down by law, the employer cannot force employees to be vaccinated. As we write these lines, there are currently no legal basis that could be used to force any employee – including in the medical sector – to take a vaccine. What’s more is that there are no indications this can be expected in the near future.

Unless there’s a clear legal change, there is no legal basis that can be used to justify requiring a vaccination from the employees.

2. If the employee refuses to be vaccinated, can it be a reason for dismissal or refusal of entry to the workplace?

As stated above, there exists no legal basis compelling anyone to take the vaccination, let alone an employee under the subordination link from an employer.

What could be invoked in the context of the workplace is the generic obligation of the employer to take measures for health protection purposes (provided by the law of 4 Augustus 1996 and the Code of Wellbeing at Work). Some employers could invoke such motive to require from their employees that they would be vaccinated, before coming to work, so that the employer fulfils his legal mission to protect the health of all its employees. If an employee refuses to take the vaccine and still wants to work, the employer could use this argument to dismiss him/her.

The strength of this argument is not rock solid as – without the legal obligation to be vaccinated – employees are also entitled to their freedom of choice when it comes the vaccination.

This does not mean that this freedom would be at all time absolute but, for there to be exception(s), there should either be a legal basis and/or the measure taken should be at least proportionate to its objective.

If we assume that the employer’s objective would be to protect the other employees’ health, there seems to be alternative possibilities available if an employee refuses vaccination. A simple negative test before coming to work would for example guarantee – with similar rates of certainty than vaccination, i.e. above 80 % - that the employee in question does not have COVID19.

This is de facto what is happening in the few entertainment productions (cinema, theater, etc) that are currently happening, where actors are required to produce a negative test. The employee could also be put on telework if feasible.

In the absence of a legal basis, dismissing an employee for not getting Covid-19 vaccinated is not without risk, as this could be considered to be manifestly unfair. A manifestly unfair dismissal entitles the employee to an additional compensation on top of the due severance payment. Moreover, there is a fair chance the dismissal will be considered to be discriminatory on the basis of the protected “health” or “ideology” criteria which can again give rise to additional damages.

In view of the above, a dismissal for serious cause linked to a refusal of vaccination can be even less considered and would most likely be rejected in courts in the current legal landscape.

3. Privacy and data protection

Personal health data can only be processed with the express and free consent of the person concerned. The employer is thus not permitted to keep a record of the vaccination status of his personnel without permission, even when the employee shares this information spontaneously. Consequently, it is forbidden to make access to the working place conditional upon the submission of a certificate of vaccination against Covid-19, as this would be contrary to the free nature of consent.

The above does not change the fact that a dismissal may be justified in case an employee (repeatedly) fails to comply with the prescribed safety measures imposed in the context of the corona crisis.

4. What is possible

It is possible for the employer to raise awareness and to encourage its employees to take the vaccine without putting any pressure directly or indirectly on them to do so. Employers can provide positive incentives to their employees by, for example, offering the vaccine free of charge, taxes or social security contributions or by allowing employees to get vaccinated during the working hours.

Regarding the latter, a preliminary draft law granting paid “vaccination leave” has already been approved by the Council of Ministers. Upon approval of the Council of State, this temporary measure will ensure an employee has the right to be absent from work in order to be vaccinated without loss of pay. Pending the definite legal framework, the social partners already concluded a framework agreement on the right to remain absent from work to receive the vaccine.

5. Future changes

Although, at the moment, there shouldn’t be any negative employment consequences for an employee who refuses to get vaccinated, we expect that in the future this may indirectly be the case. For example, the currently debated topic of the European vaccination passport can have a great impact for employees with an international function who are often present in different countries. It remains to see whether the Belgian legislator will anticipate such situations and how the courts will assess dismissals or refusals in this context.