Can businesses and employers demand proof of vaccination?
Can bars, gyms and travel providers refuse customers who have no proof of vaccination? And can an employer dismiss employees who are not vaccinated? Reports in the Dutch media about travel organisations and a dance instructor who are refusing customers who have not yet been fully vaccinated have sparked a number of questions.
Contractual freedom
According to Alex Geert Castermans, Professor of Civil Law, when it comes to businesses this is a matter of contractual freedom. ‘The owner of a dance school who refuses to enter into a contract with people who have not been vaccinated, is under no obligation to do so.’ The same reasoning applies to providers of group travel arrangements who are only accepting people who have been vaccinated. And what if the gym you have been going to for years suddenly makes it obligatory for its members to be vaccinated? ‘On the one hand, you can say: when we entered into our contract, there was no mention of a vaccination requirement so you cannot now demand that I get vaccinated. But the gym can also claim unforeseen circumstances. If no-one considered the dangers of the coronavirus when the contract was entered into, it could be acceptable to now demand vaccination.’ Contract law therefore allows businesses quite some margins, but there are limitations: in principle they may not discriminate and may not breach privacy legislation.
Employer can request proof of vaccination
The government believes that asking for proof of vaccination would be a breach of the law on privacy (GDPR). But it is not that straightforward, according to Professor of Labour Law Gerrard Boot. ‘The government wanted to draw a clear line by saying that it is not allowed. But in principle, an employer can ask for this as long as it is done with a good reason. What can be deemed a good reason, is arbitrary. If people are working with vulnerable groups, then this is more self-evident.’
But, Boot says, if the employee refuses to cooperate, they cannot just be dismissed. This is evident from a number of decisions by the Netherlands Institute for Human Rights. It decided in favour of nurses who as a result of their religious convictions objected to their employer’s requirement to be vaccinated against hepatitis-B. Besides: ‘People working in the catering industry could do administrative work, on their own in a separate room’, says Boot.
Employee cannot make demands
En vice versa? Can an employee demand that all their colleagues are vaccinated? Probably not, says Boot. ‘On the one hand, an employee is entitled to a safe workplace. But one person at work who is not vaccinated does not mean that there is an “unsafe situation”.’ It is important, though, to consider the context, Boot argues. ‘There’s a big difference whether you are standing about half a metre apart in a steamy kitchen, or if you are working outdoors for a landscape gardener.’