In a recent blog, we informed you about the use of the CoronaCheck app by employers. This discussion is now in full swing and CEOs of a number of multinationals have joined the fray.
Dutch State Secretary Dennis Wiersma of the Ministry of Social Affairs and Employment (‘SZW’) has answered questions answered questions in parliamentin parliament about it (in Dutch language only). According to the Ministry of SZW, employers may not at present require their employees to show a Covid pass to gain access to their physical work place, because employees are exempt from the obligation to show a Covid pass.
At the same time, the Ministry of SZW seems to be leaving the door slightly ajar; Wiersma has reiterated that employers may ask their employees for their vaccination status if there is proper cause to do so. One proper cause might be where there are no alternatives to creating a healthy and safe working environment. And although Wiersma notes that employers cannot compel their employees to get vaccinated, he encourages them to appeal to their sense of moral obligation. As Wiersma puts it, “We as the government are doing the same.”
We believe that there are three arguments for setting the prohibition against requiring a Covid pass into perspective.
- Firstly, the Ministry of SZW itself stresses that employers must provide a safe and healthy working environment. The interests of unimpeded access to the work place and protection of privacy must therefore be weighed against the interests of employers and employees in providing a safe and healthy working environment. In other words, an employer should be allowed to deny anyone who is a potential hazard to themselves and others access to the office. We note that this would only be permitted in exceptional circumstances.
- Secondly, according to the Ministry of SZW, an employer may not deny its employees access to the office if the Covid app does not show a green light. This prohibition does not, however, say anything about additional measures that the employer may, or perhaps should, take to provide a safe work space for employees and their colleagues if an employee cannot show a ‘green’ Covid app. The employer might in principle therefore deny such an employee access to the lunch hall, oblige him/her to wear a face mask and restrict his/her contact with colleagues to a minimum.
- Thirdly, infections are increasing rapidly. This requires more vigilance on the part of employers. Employers too will have to do their bit to reduce infection rates. Targeted measures, such as introducing stricter policies on access to the office, may make a valuable contribution towards reducing infections.
The demands from the corporate sector are getting louder. Philips’ CEO Frans van Houten and Nationale Nederlanden CEO David Knibbe, in particular, took a firm stance in a recent broadcast of the current affairs show ‘Op1’ (in Dutch language only). Van Houten said “I believe that we are being far too quiet about this. As an employer of a multinational I would simply like to say that I expect everyone to get the jab.” Knibbe affirms that Nationale Nederlanden shares this view. “We also say that if you come to the office, you should be vaccinated or tested.”
We expect the government to take a position on this before too long.
