Source: CLEANTOTAL
Minister De Jonge, when discussing the Corona Act, promised that Dutch citizens would never be required to be vaccinated. Yet we now see that a vaccination certificate (or negative test result) is required for participation in events or entry to the Netherlands. May cleaning companies then also require their cleaners to be vaccinated before coming to work?
Written by Mr Alain Hardy From The Legal Company.
European jurisdiction
In the field of coronavaccination in the workplace, there is no legislation or case law yet. For inspiration, however, one can look at a case from last April from the European Court of Human Rights (ECtHR). The ECtHR decided that compulsory vaccination for childhood diseases by the Czech government was permissible. Indeed, there was a legitimate objective there (protection of public health) that outweighed the interest of those affected not to be vaccinated. Moreover, the vaccines had been found to be safe.
Employer's interest in compulsory vaccination
Under conditions, vaccination can therefore be made compulsory by the government, the ECtHR says. So can the boss also make vaccination compulsory in the workplace? After all, the employer has the right to give reasonable instructions to his staff. In that context, the employer may require employees to wear a mouth mask at work, the court recently ruled.
In addition, the employer has a legal duty of care to take measures to ensure a safe working environment. Corona contamination in the workplace, with all its consequences, must therefore be prevented as much as possible. If the employer takes insufficient measures, he is liable for the damage.
Moreover, the employer runs the risk of paying equitable compensation in case of dismissal if it fails to properly comply with the corona measures. Last March, a employer still sentenced to paying €58,000 to an employee on dismissal because the employer did not take the RIVM guidelines seriously in the workplace. Once the entire workforce has been vaccinated, keeping their distance can soon be abandoned and the masks can be thrown in the dustbin.
For cleaning companies, working with vaccinated staff naturally has many advantages. Not only is it safer for the cleaner himself, the client will also be pleased. Absenteeism will also logically decrease.
Can the employer then oblige his employees to get vaccinated? And if the employee refuses vaccination, attach consequences such as suspension or dismissal? After all, if all employees get vaccinated, they are sufficiently protected, there can be no more infections at work and everyone can go back to work.
When can you require employees to be vaccinated?
In February this year, the Health Council issued a opinion delivered On compulsory vaccination in the workplace. According to the Health Council, mandatory vaccination infringes on workers' freedom of choice. However, compulsory vaccination in the workplace should be possible if vaccination clearly adds value over other measures. It should also be clear what the consequences are if an employee refuses to be vaccinated. Dismissal as a consequence is not an option here, according to the Health Council. Transfer or another job where there is less risk of infection or spread, whether temporary or otherwise, is more likely to be a solution.
Balance of interests
For now, we are waiting for the first court ruling on corona vaccination in the workplace. Whether mandatory vaccination by the employer is possible will depend on weighing up interests. The issue is when an infringement of the right to bodily integrity and freedom of choice is justified. The employer has an interest in protecting the health of its employees, clients and thus the company. The employee who refuses will also have his reasons, for example because he does not “believe” in corona, does not trust the vaccines or does not want to be vaccinated because of his religion. In the cleaning industry, willingness to be vaccinated will be lower than average.
The balance of interests will include the fact that corona vaccines have been found safe by the Health Council and the EMA. But with an employee refusing vaccination, the main issue will be: is it really necessary for this particular employee to be vaccinated?
For cleaners, the answer in many cases will be “no”. Employers can often also safeguard the health of their employees and the continuity of their business by less far-reaching means, such as face masks.
Vaccination might be necessary for workers in occupations that involve close contact with other vulnerable people, though. In that case, vaccination would be vital for the vulnerable person. Such professions could include doctors and nurses, but also facility and support staff in hospitals or nursing homes. So cleaners could also be included here. In doing so, it should be clear that the vaccination protects the health of others.
For most cleaners, however, vaccination will not be necessary. Sometimes there is close contact with large groups of people, but less so with risk groups that are not (yet) vaccinated. There are then other, less invasive measures that can serve as a solution, such as wearing protective equipment.
Conclusion
Forcing cleaners to be vaccinated is therefore difficult, but not out of the question. The employer will always have to be able to explain to each individual cleaner why vaccination is necessary and reasonable in his/her situation and that no alternative is also possible.
Questions or advice?
The lawyers of The Legal Company specialise in employment law for the cleaning industry. Do you have questions about the above, need advice or support? Then contact The Legal Company by emailing to info@thelegalcompany.nl, calling 020-3450152 or us contact form fill in. We will then call or email you back within 24 hours.
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