If it were up to employers, employees would not have to show proof of vaccination but would be required to go through a testing line. They believe this is the only solution to address the concerns of vaccinated employees in the workplace. Labor lawyer Maarten van Gelderen emphasizes that the General Data Protection Regulation (AVG) prohibits employers from processing medical data of employees. He said this today to BNR Nieuwsradio.
The news channel inquired with Ondernemend Nederland, employers' association AWVN and arbodienst Capability how they view a mandatory test lane. More than a hundred employers said they could see something in it. A mandatory daily rapid test to prevent employees from infecting healthy colleagues on the shop floor with the corona virus is a good solution according to them. According to BNR, some entrepreneurs are setting up a complete testing street for their office premises.
Titus Kramer of health and safety service Capability is one of the employers with a testing street at the front door. He tells BNR that there are employees who refuse to cooperate. A lot of people say they'd rather stay at home and work than be forced to take a test every day. According to him, employees of production companies are more willing to take the test compared to organizations with an administrative task.
Kramer talks about the concerns of vaccinated employees who fear that they could still be infected from colleagues who do not want them vaccinated. In his view, "testing at the door" is the only way to address the concerns of vaccinated employees. "With testing you accommodate everyone, this is the most neutral system that ensures that everyone can continue working," Kramer said. He acknowledges that there are many employees who resist this and refuse to cooperate.
Labor lawyer Maarten van Gelderen acknowledges that employers find themselves in "an uncomfortable split. After all, on the one hand, they are legally responsible for creating a safe workplace. On the other, they often run into privacy rules and fundamental rights. According to him, that is also the case here.
When asked whether employers can simply set up a testing street on their doorstep and require employees to be tested, Van Gelderen said the answer is "no. "You can't, because you run into those fundamental rights, such as respect for the human body. So you don't have to allow that as an employee. And moreover, you also run into the AVG, which says you are not allowed to process this kind of medical data. You are not allowed to register test results, you are not allowed to make a policy on it," the labor lawyer told BNR Nieuwsradio.
What makes it even trickier, according to Van Gelderen, is that as an employer you are not allowed to attach consequences to employees who do not want to be tested. Sending someone home to work at home is not allowed. It is more sensitive at manufacturing companies: there, workers usually cannot work if they do not have access to the shop floor. Lawyers agree that an employer may not threaten to send an employee home and not continue to pay wages if they do not get tested.
Because of the "uncomfortable split," Van Gelderen sees the administration giving more and more leeway to employees to protect staff who have been vaccinated. For example, employers are allowed to ask employees if they have been vaccinated. However, employees are not required to answer this question. The labor lawyer is not surprised if the administration is considering other measures to give employers more legal guidance on the issue. For now, they must create a safe working environment by maintaining a distance of one and a half meters, for example, or work in separate rooms. "With the current regulations, you can't require people to get tested," Van Gelderen said.
The labor lawyer stresses that employers can make a moral appeal to staff to get vaccinated, although he questions the effect of this: after all, there is no monitoring and nothing is recorded, as this is not allowed under European privacy laws. At the moment, he says, it is impossible for employers to take harsh measures.
