Last December the Volkskrant raised the question of whether an employee would be allowed and able to be fired if he refused to be vaccinated against COVID-19.(1) The paper answered the question with a cautious "yes." But is that right? A reflection.
An employer must ensure that employees can perform their work in such a way that health and safety is protected as much as possible. Workers should not be able to get sick in their workplace from customers or colleagues, for example.(2) Especially in the health care sector, this issue arises. It would then be easy to require workers to be vaccinated. But the obligation to be vaccinated goes against Article 11 of the Constitution and Article 8 of the ECHR, which state that everyone has the right to the inviolability of his body. A duty to vaccinate goes against this fundamental right. After all, an examination of the human body is a violation of that inviolability of the body.(3) Fundamental rights also apply in the workplace.(4)
So clearly two interests are competing here: the healthy workplace and the inviolability of the body. How to handle this, in such a special situation as the coronapandemic, in such an extensive health crisis?
To answer the question of whether vaccination can be mandatory, people often turn to a 2015 ruling.(5) In that case, a firefighter refused a blood test to determine the lead level in his blood. His employer performed work on the premises of BP, a lead processing company. BP required all employees, working on their premises, to have their blood tested for lead levels at the beginning and at the end of their work. This was to protect the worker's health. The test would consist of a blood test as well as a urine test. Besides the fact that he could not stand syringes, the employee, for reasons of his own, did not want to explain why he refused the blood test. He did want to take a urine test. Because of this refusal, the employee could now not perform any work at BP, the employer summarily dismissed the firefighter.
The Supreme Court in the case dismissed the issue without a substantive opinion. This makes the court's considerations important. As a fire watchman, the employee could have expected such a test, the court said. In doing so, the employer had an interest in the test: it could not otherwise perform the work on BP's property. There was no other way to test lead levels. BP required both a blood test and a urine test. In short: the immediate dismissal was justified. The fundamental right invoked by the employee could not prevent the dismissal.
The ruling has received criticism in the literature.(6) First, the court ignores the fact, that there is the presence of a fundamental right in the employee. The Supreme Court did the same in previous, similar rulings on the employee's privacy right (7). The court then makes quick moves in its reasoning for the decision. The court smoothly argues the cognizability requirement from Article 8(2) ECHR by merely noting that as a firefighter you can expect such a test. The court moves quickly to the necessity test. Without the blood test, the employer would not be able to perform the work at BP. And another test would not be possible because BP had counted the requirement. That the employer might have consulted with BP about employees' fundamental rights does not come up in the court.
In addition to the criticisms, which can be made of this ruling, there are some factual differences. If the blood test was about protection with respect to the employee's health, the vaccination against COVID-19 is about protecting the public interest, a public health interest. Also, a blood test is of a slightly different order than a vaccination. True, it does involve a syringe, but one action involves drawing blood and the other involves injecting a substance into the body.
However, it does not bode well if, when an individual interest is at stake, the court is quick to pass over the fundamental right for the situation when a general interest, public health, is at stake. That it is now about a vaccination, while the fire watch was about a blood test, will not carry too much weight against that, I estimate.
If the obligation to vaccinate is tested against Article 8 ECHR, it will first have to be established under paragraph 1 that there is an infringement of the inviolability of the human body. Case law shows that an examination of the body or the insertion of a syringe is an infringement.(8) So: the vaccination is in principle not allowed. But the infringement may be justified if, in fact, paragraph 2 of Article 8 ECHR is met.
For paragraph 2 to be satisfied, three cumulative requirements must be met. First, there must be a purpose. What those purposes may be is defined in paragraph 2. In this case, it will be the protection of health and the protection of rights and freedoms of others.
The second requirement is that the requirement that the breach be foreseeable by law must be met. This requirement has two types of test: a strict and a less strict one. When it comes to the government versus the citizen (vertical relationship), the judge applies the strict test: the infringement must really be specifically described in the law (think of criminal law: you can only be arrested for offenses described in the law). When it comes to so-called horizontal relationships, such as between citizens, but also between employers and employees, the test is less strict. Then the law does not have to be the law, but established case law, for example, will suffice. It is then more a question of whether it was knowable and foreseeable that an infringement could take place. That does not necessarily have to be in a law. Certainly in labor law, within the framework of established case law and the interpretation of the standard of good employer and employee behavior, the observation that it must have been clear to the employee beforehand that there was a chance that an infringement would take place is sufficient. This may also have been made known in general terms at the conclusion of the employment contract. (9) Consider, for example, a handbook referred to when the employment contract was entered into.
But it must be really obvious to the employee. He could have known about it. In the firefighter's ruling, the judge dismisses it by saying that as a firefighter, you could have expected that violation. So it had not been told or made known to the fire watcher. He could have come up with it himself, the judge finds. I think the judge stepped over the knowability requirement too easily. I think it must have been made known to the employee when he entered into or during the term of the employment contract that he would have to take into account an obligation to vaccinate. This will not have been done in practice.(10)
The third requirement is the necessity test. Can the means (the infringement) achieve the goal (public health and the right of third parties)? In doing so, does the employer's interest outweigh the employee's infringement? Are the infringement and the goal proportionate to each other, i.e. are proportionality or subsidiarity not exceeded? The purpose will be achievable with the breach. There is sufficient scientific evidence that vaccinations help against infectious diseases. It is also plausible that the employer's interest (public interest, public health) may outweigh the employee's interest (privacy). Is the interpretation of the intrusion disproportionate? The vaccination will hardly be able to be "an ounce less." So proportionality will be met. But what about subsidiarity? Can't the goal be achieved with a less far-reaching intrusion? Can't the same thing be achieved by wearing protective gear? After all, this has been done all along. But for patients with mental illness, think autism or dementia, it could be different again, because these patients cannot adequately undergo care with nursing care wearing protective gear. It is very questionable, however, whether this would be a sufficient argument for mandatory vaccination, because those patients, too, have had to get used to those protective gear from staff in recent months, with no insurmountable problems, as far as I know.
In short, a review under Article 8 ECHR reveals that in most cases the requirement of foreseeability and knowability and the requirement of subsidiarity will not be met.
In the fire guard case, the employee received a summary dismissal. An urgent reason for a summary dismissal is determined based on all the facts and circumstances of the case. This includes how long the employee was employed and how he performed his job all these years. Personal circumstances can also play a role. As I wrote, the ruling received quite a bit of criticism. Particularly because the employee rightly invoked a fundamental right. Such an invocation of a fundamental right would not allow the employer to simply pass by with a summary dismissal. Especially if you now apply that to healthcare employees. They have spent the past year" working their asses off" and then if they don't get vaccinated because of their fundamental right they could face summary dismissal. A summary dismissal means no more pay for the employee and no unemployment benefits and a punitive sanction under the Participation Act, if the employee qualifies for that at all. Surely you don't wish that on an employee who was labeled a "hero" as recently as March of this year.
If the employee does not want to cooperate in a termination himself, think consent to the termination or a termination agreement, then the employee is left with a path to the subdistrict court to request dissolution. The first way to go is to find out what grounds the employer can put forward. It cannot be dysfunction, culpable actions, or a disturbed working relationship. There remain the conscientious objections or the h-ground for special situations. The employer will then have to make a strong plausible case and give good reasons why the work can only be done by vaccinated employees. But whichever ground it will be, as an employer you will always have to examine the employee's reassignment with these reasons as well.(11) That means the employer will have to see if the employee can do other work where the vaccination is not required, or can be transferred to another department or establishment. So the employer will also have to justify why the employee cannot do substitute work. All the while there are major personnel shortages in healthcare.
An obligation to vaccinate will not, in my apparent belief, succeed on the grounds that employers have not made it known in advance and foreseeable to the employee that an obligation to vaccinate is possible. A factor in this will be that the employer must also demonstrate that there are no other opportunities to perform the work in a manner other than vaccination.
Should the employer wish to proceed to terminate the employment contract, summary dismissal on account of the fundamental right invoked by the employee will not be obvious. The dissolution of the employment contract will not be promising, because the employer will have to make a strong plausible case and give good reasons that the employee cannot do substitute work, while there are major personnel shortages in the health care sector.
Footnotes
(1). Dismissal for vaccine refuser is very last resort, Volkskrant December 11, 2020, by Charlotte Huisman
(2). See Article 3 Working Conditions Act and Article 7:658 BW, but also the temporary amendment to the Working Conditions Decree of November 25, 2020, Official Gazette 2020, 483 requiring employers to take necessary measures to prevent the spread of the coronavirus.
(3). That an examination of the human body is an invasion and that privacy does not stop at the front door of the employer's business are not in dispute: ECHR March 9, 2004, Wretlund v. Sweden).
(4). See, inter alia, Niemietz (ECHR 16 December 1992, NJ 1993/400; Halford (ECHR 25 June 1997, NJ 1998/506); Copeland (ECHR 3 April 2007, NJ 2007/617.
(5). HR 30 October 2015, ECLI:NL:HR:2015:3193 (G4S Fire & Safety B.V.)
(6). M.A. Huisman in JIN 2016/1; W.L. Roozendaal in AR updates 2015-1069; I. de Laat in JAR 2014/241)
(7). Wennekers Leather Goods, HR 27-4-2001, ECLI:NL:HR:2001:AB1347(camera images) and Hyatt, HR 14-9-2007, ECLI:NL:HR:2007:BA5802 (blood test).
(8). See footnote 3.
(9). See Article 7:669 (3) BW.
(10). The employer could argue that the pandemic surrounding the COVID-19 virus was an exceptional situation that he could not have taken into account in advance. He could not have given advance notice of the vaccination requirement. But in healthcare, vaccination is not new. Every year we talk about vaccination when it comes to the flu shot. In recent years we have had to deal with viruses that could be dangerous if widely transmitted to patients or staff, think of the SARS virus, swine flu and MERS virus.
(11). See Article 7:669(1) of the Civil Code.
