Monday 17 January 2022

Coronavirus vaccination at work – legal FAQ

The employment law experts at GMW lawyers share insights on your rights in the workplace regarding coronavirus vaccination, and when it is worth contacting a lawyer.

The rules surrounding coronavirus change frequently. GMW lawyers is pleased to share some clear answers to the most frequently asked questions about Dutch employment law and coronavirus vaccination. The following is a general advice on your rights in the Netherlands and is correct at the time of writing (26 November 2021).

Can my employer force me to get vaccinated?
No.
Your employer cannot force or compel you to get vaccinated. In the Netherlands your human rights are strongly protected, and because the Dutch government has not made vaccination mandatory, no-one can impose what is called a ‘vaccination obligation’ on you.

Can my employer ask me if I have been vaccinated?
Yes.
Your employer has the right to ask you this question. However, you as an employee have the right to answer or to choose not to answer this question. Your employer cannot oblige you to tell them whether or not you have been vaccinated.

As an international, it may seem strange that your employer is allowed to ask you this question, but remember that discussion and open communication is a strong part of Dutch culture and rights. Your employer is free to ask, just as you are free to answer – or not.

Am I obliged to tell my employer whether or not I have been vaccinated?
No.
There is currently no obligation for you to inform your employer of your vaccination status – even if they ask. You do however have the right to inform your employer if you choose to do so.

Can my employer change my employment terms due to coronavirus?
Perhaps.
If your employer were to change the terms of your employment contract due to coronavirus, they would need to be able to explain why the change is necessary and why employees can be expected to accept such a change. But whether or not your employer can do this without your consent depends on the exact terms and conditions of your employment agreement.

If your employment terms contain what is called a ‘unilateral changes clause’, then your employer has the right to change their terms unilaterally and without your prior agreement, and the terms will apply to your employment.

But if your employment terms do not contain this unilateral changes clause, then your employer will have to ask your agreement before they can apply the change the terms to your employment; until you consent, the terms will not apply.

Do note however that if an employer can prove that changed circumstances make a change necessary and the proposal for change is reasonable, an employee can be required to accept a proposed change.

Even if your employment contract includes a unilateral change clause, in order to effect the intended change in their terms, your employer would still have to prove that they have such a compelling business interest that it reasonably outweighs the interest of the employee – and meeting that legal threshold would be challenging.

Can I be fired on the spot for refusing to get vaccinated?
No.
Refusing to get the coronavirus vaccination is not a reason for summary dismissal in the Netherlands, as discussed in a recent article by employment law expert Koen Vermeulen.

Being fired on the spot is called summary dismissal. This is the harshest censure under Dutch employment law and, as such, is reserved for the most serious cases only. If this happens, call a lawyer immediately.

When should I call a lawyer about coronavirus vaccination at work?
The majority of the time, while a lawyer can explain your rights to you or answer a specific question about coronavirus vaccination in the workplace, it is not worth the cost of hiring a lawyer just to discuss this topic. Instead, it may be wiser to try talking to your employer about your concerns, and seeing if you can reach an alternative solution together – such as working from home.

However, there are certainly times when you would be wise to call a lawyer immediately, such as:

1 – If you are fired on the spot (for any reason)

2 – If you are fired ‘for refusing to get the corona vaccine’

3 – If your employer makes coronavirus vaccination a condition of your continued employment

If you find yourself in one of these situations, GMW lawyers’ team of English-speaking legal experts will be happy to help you – contact us on 070 361 5048 or submit your question online.

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