Effective September 25, 2021, the use of the CoronaCheck app will be mandatory at a number of venues (including hospitality and events). Visitors to these venues will then have to be able to show a corona access proof before being allowed inside. This proof comes in the form of scanning a QR code that displays a green checkmark when the visitor is fully vaccinated, has a recent negative test result or has recovered from a corona infection. This perspective addresses the extent to which an employer can use the CoronaCheck app in the workplace.
An employer is obliged to ensure a healthy and safe working environment. Some employers would like to fulfill this duty of care by using the CoronaCheck app, because in that case a check can take place at the front door. The risk of infection in the workplace can thus be reduced.
However, the use of the CoronaCheck app is not straightforward. This is because the CoronaCheck app has only been made mandatory for locations where activities with a high risk of infection take place, such as hospitality and event venues. For employers in other sectors, therefore, there is no (direct) legal basis for mandating the use of the CoronaCheck app.
Moreover, use of the CoronaCheck app is mandatory only for visitors to the venues. In fact, visitors have a free choice whether or not to visit sites. Employees do not have this free choice, as employees have a duty to perform labor under the employment contract and in most cases depend on their work to earn a living. There are also practical complications, as workers who have not been vaccinated and have not recovered from corona infection would have to undergo a corona test no later than 24 hours before each working day in order to be allowed to work. Therefore, the legislature chose to explicitly exclude workers from the group that could be required to use the CoronaCheck app.
In addition to the above, an employer should not process medical data on its employees, such as vaccination status. Employers are also well advised to be cautious about asking questions about vaccination status. Indeed, given the dependency relationship between an employee and employer, an employee may feel pressured to answer such a question in a certain way.
Beyond this, the question is what purpose a question about vaccination status serves. After all, the answer may not be processed. There are also equal treatment risks involved if an employee were to be treated differently depending on vaccination status. An employee could then take the position that there is prohibited discrimination based on medical condition.
Employers are well advised to be cautious about asking about vaccination status and should not currently require their employees to show a corona certificate before entering the workplace. However, the Minister of Health, Welfare and Sport has announced that the Cabinet wants to explore whether and how the CoronaCheck app could be used in work situations. However, this would require a change in the law. To date, it is not known whether this change in the law will come about and whether this will open up new opportunities for employers.
