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While the return to face-to-face work marks an important change in the lives of many employees this September, it also raises questions for some employers about their rights and obligations to both vaccinated and unvaccinated employees against Covid-19.
Indeed, if the employer has the obligation "to ensure that work is performed in appropriate conditions as regards the safety and health of the employee", the question arises as to how this obligation can be reconciled not only with the employee's right to the protection of his private life and personal data, but also with the anti-discrimination regulations.
Let’s take a look at the rules that are applicable in this area at a time when all employees have had the opportunity to be vaccinated.
At present, vaccination against Covid-19 is not mandatory and is therefore voluntary. Moreover, unlike what is provided for certain other vaccines, the Code of well-being at work does not, at the time of writing, provide for the obligation to be vaccinated against Covid-19, regardless of the employee's position or professional category.
Under no circumstances can the employer force his employees to be vaccinated.
The vaccination status of a person is a health data. Health data is a special category of personal data. The GDPR prohibits the processing of health data, unless a legal provision allows it or the free and explicit consent of the data subject is given.
According to the Data Protection Authority, the employee must have a real choice as to whether or not he wishes to have his health data processed. In the employee-employer relationship, the employee's consent is rarely free because an employee may be under significant pressure to give consent.
Therefore, the employer cannot currently ask for the vaccination status of his employees, regardless of the reasons. A fortiori, he cannot force his employees to show him their vaccination certificate (Covid Safe Ticket).
If the employer is aware of the vaccination status of his employees, he may not refuse access to the workplace to non-vaccinated employees. There is currently no legal requirement for vaccination or for employees to be vaccinated.
A person's vaccination status can be equated with (future) health status, which is a criterion protected by anti-discrimination regulations in all aspects of the employment relationship (hiring, working conditions and remuneration, termination, etc.). In order for the distinction made by the employer on the basis of the vaccination status of the employee not to be considered (prohibited) discrimination, it must be justified by a legitimate aim and the means of achieving that aim must be appropriate and necessary. While it may be accepted that a difference in treatment between vaccinated and non-vaccinated employees can be justified by a legitimate aim (protection of employees, customers, patients, etc., continuity of the undertaking's economic activity), the means of achieving this aim can hardly be considered necessary. According to Unia, the employer would have to prove that the measures taken are “reasonably necessary” to achieve these aims. The employer's actions will not be considered reasonably necessary if alternative, less discriminatory means (enforcement of safety guidelines, etc.) can be used to achieve the legitimate aims.
Therefore, at present, the employer cannot treat vaccinated and unvaccinated employees differently. For example, he cannot allocate premiums only to vaccinated employees, he cannot refuse to hire an applicant because he is not vaccinated, or he cannot dismiss an employee simply because he is not vaccinated.
The generic guide and the sector guides (which provide a framework to ensure that activities can be resumed under the safest and healthiest possible conditions) make no distinction between vaccinated and non-vaccinated employees. This means that the employer is obliged to apply, for all employees, all appropriate preventive measures in order to ensure, in particular, the rules of social distancing and to provide a maximum level of protection.
Sources: Unia; Data Protection Authority; Generic guide (version 6) and sector guides: Working safely during the coronavirus crisis; Joint declaration of the social partners of the National Labour Council and the Higher Council for Prevention and Protection at Work concerning the prohibition of discrimination against employees on the basis of their Covid-19 vaccination status.
 The Consultative Committee of 20 August 2021 announced that vaccination will be made compulsory for health care staff. At present, this obligation is not yet applicable.
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