Can an employer require employees to be vaccinated against COVID-19? Can an employer require employees to present a vaccination certificate? Can an employer refuse unvaccinated employees access to the company?
There is currently no legal basis in Belgium to link the performance of work to a mandatory COVID-19 vaccination. Therefore, no matter which sector they are from, employers cannot oblige employees to be vaccinated against COVID-19. Of course, as part of the company's wellness policy, an employer can encourage employees to be vaccinated (e.g., through an information session).
Does this mean that employers cannot treat unvaccinated employees differently from vaccinated employees (for so far as they may have this information)? For example, can an employer require unvaccinated employees to work at home, while allowing vaccinated employees to come to the company premises? At first sight, different treatment such as this could be considered an unlawful discrimination based on the employee's health condition. However, anti-discrimination legislation does allow a distinction to be made provided that it is justified by a legitimate aim (in this case, the protection of the health of employees, visitors, etc.), and that the means of achieving that aim are appropriate and necessary. The question is, therefore, whether denying unvaccinated employees access to company premises is an appropriate and necessary means to protect employees and visitors at the workplace. In practice, the answer to this question is likely to be no, partly in view of the ambiguities about the effectiveness of the vaccine to date. The same reasoning applies with respect to any employee reassignment to another job or work position.
Similarly, according to the Belgian Data Protection Authority, an employer cannot request a vaccination certificate from employees. A person's vaccination status is health data within the meaning of the GDPR. The processing of such data is not allowed, unless the person concerned has given his or her explicit consent. However, provided the employee agrees to produce it, the mere presentation of a vaccination certificate to the employer – if the employer does not retain the document or record the data – would not constitute processing within the meaning of the GDPR. The employer is not entitled to penalize an employee for refusing to present such a certificate.
Will employees from "essential sectors" be given priority in the vaccination campaign?
It was initially foreseen that "persons with an essential function" would be vaccinated before the rest of the population in the final, broad category of persons over 18 years of age. However, this proposal now seems to be definitively off the table. The High Council for Prevention and Protection at Work has advised against it, and the trade unions and employers' organizations did not support the proposal either. One of the biggest issues concerned the establishment of a list of essential functions.
With the exception of health care personnel in the broad sense (for which the vaccination campaign has already started) and a very limited group of police officers (in the context of monitoring quarantine obligations), no professional group or sector will be given priority for vaccination.
Can an employee be vaccinated during working hours? If so, will the employee have to take paid leave?
There is currently draft legislation that allows employees to take circumstantial leave ("small leave") to be vaccinated against COVID-19. If passed, this law will allow employees to be absent from work, with pay, in order to receive the vaccine. The duration of the absence must be limited to the time required to be vaccinated (travel time to the vaccination center, vaccination, and return). At the employer's request, the employee must be able to provide proof (for example, the invitation to be vaccinated at a specific time).
In its opinion on the draft legislation, the National Labor Council (NLC) requested that the continuity of the company's operations be taken into account so that the proper organization of work is not compromised. The NLC sees a role for the social consultations within the company to steer things in the right direction.
Can employees who have not been vaccinated still go on business trips?
The employer cannot make any distinction between vaccinated and unvaccinated employees. Unvaccinated employees (insofar as the employer knows whether the employee has in fact not been vaccinated) may therefore also be sent on business trips. Of course, any COVID-19 prevention measures that apply in the country of destination must be complied with (negative coronavirus test, quarantine obligations, safety measures on site (face mask obligations, distancing rules, etc.). An employer should always check whether the employee must carry a sworn statement or other document with him/her during the trip abroad. When returning to Belgium, the applicable preventive measures must also be observed (possible quarantine/isolation, compulsory coronavirus test(s), Business Travel Abroad form, etc.). All this must be checked before departure.
In principle, a train or airline company may not refuse to allow an unvaccinated employee to board. A person's vaccination status is health data within the meaning of the GDPR. The processing of such data is prohibited except in case of a legal exception (and there is currently no such exception in place, according to the Belgian Data Protection Authority) or in case of explicit consent. Thus, an employee who refuses to disclose his or her vaccination status to the transport company cannot be denied access to the train or plane on those grounds. The transport company has no valid legal basis for processing this health data (or for acting upon it).
Emmanuel Plasschaert
Partner – Brussels
Email: eplasschaert@crowell.com
Evelien Jamaels
Counsel – Brussels
Email: ejamaels@crowell.com
Stefanie Tack
Counsel – Brussels
Email: stack@crowell.com
Adrien Moureaux
Associate – Brussels
Email: amoureaux@crowell.com
