Partner, Member of Board of Directors
Jan Hofkens
Employment
Health
Fraud and internal investigation
jan.hofkens@lydian.be
Can an employer require his employees to show a Covid Safe ticket?
In Belgium it is currently legally possible to impose a Covid Safe ticket as a condition for entry or participation. In Brussels this is even mandatory as from today, 15 October 2021 (and currently until 14 January 2022, subject to extension) for, among other things, a visit to catering establishments, a trade fair, sports clubs, or if an event is organised for more than 50 participants (Brussels Ordinance of 14 October 2021 concerning the extension of the Covid Safe Ticket in case of necessity resulting from a specific epidemiological situation).
The Covid Safe Ticket shows who has been vaccinated, tested negative for, or recovered from COVID-19.
Not surprisingly, many employers are wondering whether they can use this Covid Safe ticket in their hr or health and safety policy: can an employee be required to show a Covid Safe ticket as a condition of being admitted at the workplace?
The answer is no. Just as there is no legal basis (yet) for mandatory vaccination, there is no legal basis (yet) for an employer to enforce this. This also means that an employer cannot refuse employees at the workplace when they would not be able to show a Covid Safe ticket, nor oblige them to work from home. Not even for employees working in companies that are subject to a mandatory Covid Safe Ticket (such as staff in a restaurant or a fitness club in Brussels).
What is possible?
Companies with at least 50 employees can be informed of the vaccination rate within their company via their company doctor. The company doctor will give the exact percentage if the number of vaccinated persons is between 20% and 90%. For companies where the number of vaccinated persons is above or below this, only this information is provided (and not the exact percentage). The percentage may be communicated to the health and safety committee or the union delegation and to the employees. In the end, the percentage is in itself not personal data, but an anonymous target number, so neither the GDPR nor the privacy rules apply in this case.
The only aim is to raise awareness of employees to be vaccinated, this with all actors involved.
The company doctor can always undertake individual awareness raising campaigns by, for example, checking the vaccination status of an employee who presents himself for a periodic health assessment or a spontaneous consultation and during this consultation listen to the employee, providing him or her with information and in this way trying to convince him or her to be vaccinated.
Please note that a high vaccination rate in a company does not mean that the prevention measures at work (see most recent version of the generic guide (only available in Dutch or French) should no longer be respected or can be abolished.
Finally, in certain cases companies can organise vaccinations at the workplace in consultation with the company doctor. Obviously, this vaccination opportunity remains voluntary and employees cannot be obliged to have themselves vaccinated.
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