Recently, colleague Annemiek Poortman wrote another column for Flexnieuws, this time about the bill to also regulate access to the workplace through the Corona QR code:
During the Covid-19 pandemic, legislators allowed corona vaccination certificates to be required of customers and visitors in a number of areas. Which areas these are is exhaustively regulated by law: culture, events, hospitality and sports, among others. A corona access certificate is an electronic or written proof (a QR code) of a (negative) test result, of vaccination or of recovery from infection with the corona virus.
So far, the corona vaccination card only applies to visitors and customers, not (yet) to employees, temporary or self-employed workers in these sectors. The rationale behind this is that employers can take other effective measures to prevent workers from being exposed to a risk of contracting the virus. Given the rising figures in recent months, the need seems born to end this dichotomy. On 22 November 2021, a bill was introduced in the House of Representatives that-if necessary-would also allow corona-access certificate to be used for access to workplaces, both for employees and temporary workers and for deployment in other areas.
First of all, the bill regulates that in sectors where visitors were already allowed to be asked for a QR code, this may soon also apply to employees and temporary workers. Furthermore, the proposal regulates that - by ministerial regulation - other areas can also be designated where the corona access card must be shown for access to work. The Explanatory Memorandum to the proposal shows that these are areas that, due to the nature of the work or the circumstances in which the work is performed, pose a real risk of transmitting the virus.
Consider unplaced environments where keeping distance is difficult, environments where people are at a short distance from each other for at least 15 minutes, and/or environments where air quality is generally poor to poor (inadequate ventilation). An office environment will not easily comply with this, but factory environments will, where no alternative is possible, think working from home or keeping sufficient distance and where relatively many people work within each other's 'breathing circle'.
If an industry is designated as an area where a corona vaccination certificate may be required, the employer is not yet obliged to do so. An employer may also opt for alternative measures if it ensures adequate protection of employees and temporary workers by other means. However, the form of the alternative measures is not free. These measures will be included in a ministerial regulation.
The deployment of a corona vaccination card in the workplace is a fundamental step. The OMT was consulted on this beforehand and sees this as an appropriate measure in a deteriorating corona situation. The aim of the bill is to curb transmission and halt the rising inflow and utilisation of hospital and intensive care unit (hereinafter ICU) capacity. However, the actual deployment in the workplace will undoubtedly meet resistance, given that here there is a conflict with the right to bodily integrity and the right to respect for privacy, including the right to privacy, but also the right to free choice of employment. However, the makers of the bill consider this intrusion(s) justified given its relevance to public health.
If an employee will soon be unable to comply with showing a QR code, the consequences will have to be considered. This depends - as always in employment law - on the circumstances of the case. A good employer and employee will always be expected to have a reasonable conversation to find an appropriate solution. A far-reaching effort is expected from both to make this work. Is it possible to work from home? Can another solution be found temporarily, such as another place of work where distance can be kept, or is it possible to find other suitable work?
If the search for appropriate solutions does not provide relief, it could go as far as denying access to the workplace. This brings us to the question of whether there is still a right to wages in that case. Although 7:628 of the Civil Code states that there is, in principle, a right to wages even if the employee does not work, this does not apply when the cause of not working is reasonably attributable to the employee. Insofar as the employer's instructions are in line with the regulations regarding the use of the corona ticket, it may be assumed that these instructions are reasonable and should be followed by the employee.
Although one and other must always be assessed on the basis of the concrete circumstances, it is then obvious that the inability to comply reasonably falls on the employee. However, it must be considered whether the opportunity existed for the employee to be tested and whether this can reasonably be required of the employee given the frequency and concrete testing opportunities.
Although initial momentum was building for this change in the law, further discussion of the proposal has been pushed over the Christmas holidays. Whether the proposal actually gets through will no doubt be measured against the infection numbers at the time. If it passes, its implementation will undoubtedly lead to much discussion on the shop floor. Ultimately, the judge will be the one to decide on the right to wages. Something to keep an eye on.
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