COVID-19 - Vaccinating employees in Belgium
What possibilities are available to employers?
Now that the vaccination campaign is moving up a gear in Belgium (and across Europe) and companies are looking for ways to ensure their employees are vaccinated, it is important for employers (who have a legal and moral duty to ensure a safe working environment) are aware of the possibilities to help ensure that their employees get vaccinated.
Can a company oblige employees to get vaccinated?
No, employers are not allowed to mandate their employees get vaccinated. Under current legislation, everyone is free to decide whether they want to receive a vaccine.
Can an employer oblige an employee to disclose their vaccination status?
No, employers cannot insist employees disclose their vaccination status, nor are employers allowed to keep a record of their employee’s vaccination data.
Can a company refuse access to the workplace to employees who are not vaccinated?
No, the mere fact that an employee does not want to get vaccinated, does not serve as a ground to refuse them entry to the workplace.
Access to the workplace can only be denied when an employee is ill and displays symptoms.
Can employers encourage the employees to get vaccinated?
This is of course possible. The following options may be considered:
Motivational campaign
Employers can set up a campaign to encourage employees to get vaccinated (in line with the motivational campaigns which are initiated by the different governments in Belgium).
In the future organized vaccination campaigns may be possible at work for employees (similar to what already happens today for “regular” flu vaccines). Obviously, this will only be possible when there is a sufficient supply of vaccines.
Paid leave for vaccination purposes
On 12 February 2021, that the Belgian government announced that employees will be entitled to paid leave during the working hours for the purpose of getting vaccinated. The legislation outlining this is yet to be published, but employers can highlight this benefit to employees.
Vaccination bonus
A purely motivational campaign may not possibly be sufficient to encourage all employees to be vaccinated. Therefore, companies are currently looking to go one step further and investigating the possibility of a vaccination bonus.
One of the options that was explored was to grant a Collective Bargaining Authority (CBA) n° 90 bonus (ie a non-recurring result linked bonus based on the achievement of a collective objective, this would’ve been subject to tax and social security). The collective objective in this case would be the achievement of a certain vaccination ratio (e.g. 80% of the employees vaccinated by a certain date).
However, the Federal Public Service Employment (which decides on the validity of CBA n° 90 bonus plans) did not accept the vaccination ratio as a valid collective objective, rendering that proposal impossible.
Employers are now left to consider the implementation of a regular “cash” bonus plan. However, legal concerns also exist concerning this, such as:
Employees must not be discriminated on their health status. Granting individual bonuses to vaccinated employees would likely be considered as unlawful discrimination towards employees declining vaccinations. Therefore, the bonus should be granted to all employees (including the employees who refuse) but only if a certain ratio of employees are vaccinated.
Consideration must be made towards the monitoring of this objective, i.e. employees would have to demonstrate proof of vaccination (a vaccination statement).
However, the Belgian Data Protection Authority (DPA) is of the opinion that there is no valid legal ground for an employer to process a vaccination statement. A valid ground for processing could be the consent of the employee but the DPA considers that employees cannot freely give their consent in the context of an employment relationship (since they would be under “high pressure” from their employer to do so).
Although this position of the DPA is being criticized, there is still a risk that producing vaccination statements for employees will be considered a breach of the applicable data protection legislation and could result in substantial penalties for an employer.
Without this possibility of producing proof of vaccination, it is of course impossible for an employer to monitor the vaccination ratio.
So, although employers cannot force their employees to get vaccinated, there are a few creative possibilities for employers to use to encourage employees to be vaccinated. But, if employers choose to encourage this by granting bonuses, it should be noted that it is likely to breach legal provisions.
