AP must provide more clarity on privacy issues surrounding corona

With the reopening of the economy on the horizon, it is important for employers and employees that the AP speak out clearly on privacy law corona issues. Annemarie van Woudenberg previously wrote about corona v.s. privacy in the workplace and the AP's reluctant role in this regard. We regularly receive questions from companies confronted with employees who do not want to be tested or vaccinated. How should you deal with that as an employer? And what are you allowed or not allowed to ask of, or of employees at all? 

No position

With many of these (new) privacy law questions about testing and vaccination, clarity from the AP is needed more than ever. Unfortunately, the AP is not taking a stand, although there seem to be enough leads that could lead to a clear position. For example, as of Jan. 1, 2021, the Occupational Health and Safety Decree contains a heightened duty of care for employers to take timely and necessary measures to prevent or limit the risk of corona contamination of employees as well as third parties in the workplace. In addition, the Health Council has published its advice 'Ethical and legal considerations of COVID-19 vaccination'. This makes it possible under circumstances for institutions and companies to use vaccination certificates to regulate access to companies or institutions. Moreover, on April 8, the European Court of Human Rights ruled that mandatory vaccination of children may be legal and necessary in a democratic society to protect public health. Surely some room to think with employers seems to have been given with this in several ways. Yet the AP keeps its distance when it comes to testing and vaccination.

Asking about vaccination

Regarding the question of whether, as an employer, you may ask employees whether they have been vaccinated, the AP states on its website that The AP can only say something when it involves processing personal data. In practice, this means: when employers record personal data related to corona vaccinations. So asking an employee whether he is getting vaccinated is, in my view, in principle permissible. The important point is that you are not allowed to write down or record the answer. Nor is the employee required to answer that question.

In conclusion

Thus, as an employer, you do not (currently) have monitoring options to determine whether or not employees have been vaccinated. The question is whether the AP will stick to the limitations of privacy laws. In these times, it is important that - especially as far as privacy law is concerned - all noses point in the same direction. In the context of legal certainty but also to accommodate both the protection of employee privacy and employer interests, the AP will have to show color on these important social issues.

Want to know more about privacy and corona in the workplace? Feel free to contact Annemarie van Woudenberg.