Can an employer oblige his employees to get vaccinated against COVID-19 or demand a vaccination certificate as a condition to work?
No, they cannot. Below, we will explain why.
1. An employer cannot oblige his employees to get vaccinated against COVID-19
Mandatory COVID-19 vaccination is not possible, because there is (currently) no specific legal basis for it.
Moreover, the Act of 28 January 2003 on medical examinations carried out within the framework of employment relations stipulates that an employer cannot have medical examinations carried out for reasons that are unrelated to the current suitability of the employee for, and the specific characteristics of, the vacant position. Derogation from this is only possible in the cases determined by a decree issued after consultation in the Council of Ministers. To date, no such derogation has been provided for in relation to the COVID-19 vaccine.
However, the Codex on Well-being at Work was amended in November 2020 with regard to activities in which employees are (e.g. in the health sector) or may be (e.g. for work activities in the food industry, agriculture and social and emergency services and in penal institutions) exposed to biological agents such as viruses as a result of their work. The coronavirus SARS-CoV-2 has been listed as a group 3 biological agent (i.e. one that can cause serious disease to persons and can form a major hazard to employees, with a potential for spreading to the population, and for which there is usually effective prophylaxis or treatment available). Employers in the industries concerned are obliged to take this into account in their risk assessment and must offer the employees concerned the opportunity to be vaccinated if an effective vaccine is available and they are not yet immune. However, there is no obligation for the employees to get vaccinated against COVID-19 in these industries either.
2. An employer cannot oblige his employees to provide a vaccination certificate
No legal provision allows an employer to require an employee who declares himself fit to work to present a certificate of fitness. The same reasoning applies to the provision of a vaccination certificate.
Employers cannot keep records of this either. The Data Protection Authority has previously ruled that employers may not communicate the names of infected employees, except to the occupational doctor. Hence, names of employees who refuse to be vaccinated may not be processed either.
Of course, an employer may not treat employees who do not wish to be vaccinated unfavorably either. An employee could argue that a dismissal as a result of his refusal constitutes discrimination on the grounds of his health condition (compensation equal to 6 months’ salary), or a manifestly unreasonable dismissal (compensation equal to 3 to 17 weeks’ salary).
3. So what is possible?
Raising awareness is, of course, always possible. An employer can inform his employees of the benefits of a COVID-19 vaccination. Employers can also offer their employees an incentive by allowing them to be vaccinated during working hours and treating the time spent doing so as working time. In the future, this may even be regulated by law. Indeed, Minister of Labour Dermagne has made a proposal to this effect to grant a right to circumstantial leave for a COVID-19 vaccination.
A system of voluntary vaccination as known in the context of the "ordinary" flu is also possible. However, it remains to be seen whether such a system would be feasible in practice.
Creative employers could consider including a common vaccination coverage rate of e.g. 90% at company level as an objective within the framework of CBA n° 90 in relation to non-recurring result-related benefits. However, this is not allowed according to the FPS Employment, Labour and Social Dialogue, as it considers such objective not related to the collective results of the company.
Apart from the impact of the now widespread Coronavirus (COVID-19) on our daily personal life, companies in Belgium and around the world also face important difficulties and challenges on all levels of their day-to-day business.Find out more regarding various related topics
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