The Belgian government’s vaccination campaign is finally coming up-to-speed. Employers are also eager to rapidly have a large number of their workers vaccinated to be able to work in a safe and healthy environment and resume business as usual. But can employers oblige 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? We will answer these and other questions in this practical Q&A.
1. Can an employer force its workers to get vaccinated?
NO.
An employer cannot force its workers to get vaccinated due to the lack of any legal basis to do so.
As the legislation currently stands, vaccination for Covid-19 is not compulsory. Indeed, the Belgian government has decided not to impose a general vaccination obligation on its citizens, but to offer them the vaccine on a voluntary basis. Consequently, the employer also must abide by this ‘free choice principle’. Obliging its workers to take the vaccine would violate their right to privacy and their right to physical integrity.
2. Can an employer take action against any workers who refuse to get vaccinated?
NO.
An employer may not treat unfavourably any worker who chooses not to be vaccinated.
Therefore, the employer may not:
deny such a worker access to the workplace; or
‘penalise’ the worker (e.g. by means of a disciplinary measure) for refusing to be vaccinated.
Also, as the Covid-19 vaccination is not compulsory, there is a risk that any granting of specific premiums or benefits to workers who do decide to get vaccinated would be regarded as a type of discrimination and would expose the employer to a damages payment (of 6 months of the worker’s salary).
For the same reason, it is also not possible to grant a collective ‘CBA 90 bonus’ (non-recurring result-related benefits) to the workers when a certain percentage of the staff has taken the vaccine.
3. Can an employer ask its workers to submit a vaccination certificate?
NO.
An employer is not allowed to ask a worker who declares himself/herself fit for work to present a vaccination certificate to enter the workplace.
Moreover, the registration or recording of a worker’s vaccination status constitutes the processing of sensitive health data, which is, in principle, prohibited by the GDPR, unless a legal basis would allow for the processing of such sensitive data. However, the Belgian Data Protection Authority (DPA) has taken the position that, currently, there is under Belgian law no sufficiently specific legal basis for justifying the processing of health data regarding vaccination.
Also the worker’s consent will not be a sufficient ground for the employer to process data on the vaccination status, as consent cannot be freely given in an employment relationship due to the subordinate position of the worker vis-à-vis the employer.
Therefore, employers are not allowed to process data relating to the vaccination status of their workers.
Employers are also not allowed to ask their workers if they have been vaccinated. Indeed, the Social Penal Code penalises the employer’s verbal collection of information with the aim of obtaining medical data on the worker’s state of health for reasons other than his/her current skills.
4. Are the workers entitled to paid leave of absence to get vaccinated?
YES.
On 9 April 2021, a new law entered into force granting paid short leave to workers in order to 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 the worker must get two injections during working hours, then short leave will be granted twice. However, if the worker decides to get vaccinated outside working hours, e.g. during the weekend or during a compensatory rest day, then the right to paid short leave will not be granted.
To maintain his/her entitlement to salary during the short vaccination leave, the worker must notify the employer in advance of the time(slot) of his/her vaccination.
The employer is allowed to ask the 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, then workers must present their invitation to the employer. However, the employer is not allowed to take a copy of the confirmation letter or the invitation or transcribe any of this information, with the exception of the time of the appointment.
The employer may only use the obtained information for the purpose of organising work and ensuring proper payroll administration. The employer may only register the worker's absence as 'short leave' without specifying the reason for the absence (i.e. for vaccination purposes).
5. Can an employer organise a vaccination campaign within the company?
YES.
An employer cannot force its workers to get vaccinated, but it can raise awareness by encouraging them to get the vaccine and informing them of the advantages (and also possible disadvantages) of vaccination. Therefore, an employer can inform its 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 some categories of workers, informing the workers and offering them the opportunity to get vaccinated is even compulsory.
Indeed, following the inclusion of Covid-19 in the so-called list of biological agents in the Codex on well-being at work, employers who 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, the agriculture or health care sector, are obliged to conduct a specific risk analysis.
If this risk analysis shows that there are certain jobs or categories of workers for whom there is an increased risk of exposure due to direct contact with Covid-19, then the employer must, among other things and unless the risk analysis would indicate that such action is not necessary:
Draw up a list of the workers exposed to Covid-19 to be kept with the occupational doctor;
Inform the workers about the existence of the vaccine and the advantages and disadvantages of vaccination;
Offer workers with increased exposure the opportunity to be vaccinated (which means, in the current state of legislation, referring them to the vaccination centres).
