COVID-19: Can employers oblige their workers to be vaccinated?

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Date:
15 Feb 2021

COVID-19: Can employers oblige their workers to be vaccinated?

Employers have the obligation, based on the health and safety legislation, to take preventive measures to combat the spread of Covid-19 in the workplace. However, compulsory vaccination, as part of that policy, will not be possible as the Belgian (health and safety) legislation does not provide for compulsory vaccination against Covid-19.

Compulsory vaccinations in Belgium

In Belgium, as a citizen, you are only obliged to be vaccinated against polio. Other vaccinations, including the Covid-19 vaccine, are only strongly recommended. However, within the framework of the health and safety legislation, certain categories of workers may be subject to certain compulsory inoculations if they are employed in specific enterprises (listed in Annex VII.1-6 of the Code on well-being of workers).

These include compulsory tetanus vaccination for employees working in, among others, agricultural and horticultural companies; compulsory tuberculosis vaccination for employees working in, among others, services or units for the care of bacilli carriers in hospitals; and, finally, compulsory hepatitis B vaccination for employees working in, among others, services where medical examinations are carried out and/or medical care is provided. If the above workers cannot present a valid vaccination or tuberculin test card, employers are even prohibited to employ such workers.

Since there is no legal basis in (the health and safety) legislation, compulsory vaccination and the associated prohibition of employment cannot be part of the policy to prevent the further spread of the Covid-19 virus in the workplace.

Raising awareness and facilitation

However, employers are allowed to encourage their workers to be vaccinated through a free vaccination campaign at the workplace (under the direction of the occupational physician). This free vaccination will be exempt from taxes and social security contributions.

Of course, it is possible to encourage workers to be vaccinated by using awareness-raising campaigns. As an incentive, employers could, for example, offer their workers the opportunity to be vaccinated during working hours. This may also be regulated by law. Indeed, Minister of Labour Dermagne has already proposed to the social partners to provide time off for employees who want to be vaccinated. 

Refusal of vaccination and dismissal

As mentioned above, there is no legal basis for obliging workers to be vaccinated with the Covid-19 vaccine. Therefore, dismissing a worker in case of refusal is not without risk. More specifically, the dismissal could be considered as manifestly unfair, which could lead to damages equal to between 3 and 17 weeks’ salary on top of the legal severance pay. Or the dismissal might be considered discriminatory, e.g., on the basis of the protected “religious belief and ideology” criterion, or possibly on the basis of the protected “health” criterion, which can result in damages amounting to six months’ salary.

We believe that dismissal for persistent refusal to comply with legally required safety measures is defensible. For example, in a recent judgment the labour tribunal ruled that a persistent refusal to wear a mask at the workplace justifies dismissal for serious breach. 

Privacy and data protection

Processing data in order to know whether workers have been vaccinated is considered under data protection law to be the processing of sensitive personal data and is therefore prohibited. In the absence of a legal basis in Belgium, it will not be possible for employers to record which workers have been vaccinated and which workers refuse to be vaccinated. This is also the case when a worker spontaneously shares information about this with his employer. In that case, too, such data may not be registered.

Action Point

Under no circumstances may workers be obliged to be vaccinated. On the other hand, encouraging workers, possibly through a free vaccination campaign at work, is permitted. The costs involved will be exempt from taxes and social security contributions. In order to avoid the risk of additional damages, we recommend not dismissing workers solely on the basis of a refusal to be vaccinated. Finally, as an employer, you are not allowed to process information about who has been vaccinated and which workers do not wish to be vaccinated.