Now that vaccination against COVID-19 is gaining momentum and will be available to the wider (working) population, this will undoubtedly have an impact on the workplace. 

As an employer, you are obliged to look after the well-being and health of your employees and all others who come across the work floor. Certainly, you have already taken many initiatives within the framework of the applicable coronavirus measures. Does this mean that, as an employer, you have to outline a vaccination policy as well? Another burning question is whether you can sensitive, incite or even oblige your employees to vaccinate themselves?

1. Making vaccination compulsory is not an option

As in many other countries, in Belgium vaccination against COVID-19 is not compulsory and only recommended, and therefore not obligatory in the workplace.

The Code on Wellbeing at Work provides that the employer can (or must) make vaccination compulsory in companies where employees are or may be exposed to biological agents due to the nature of their work (e.g. vaccination against tuberculosis, tetanus, Hepatitis B in medical care, etc.). Thus, vaccination against some disease or virus at work cannot be imposed on the majority of the "working" population.

The employer therefore has no legal basis to require vaccination against COVID-19. It is also not an option to link vaccination to sanctions - such as prohibition of employment, denial of access to the workplace or even dismissal.

An employer who dismisses an employee for refusing to vaccinate risks that the dismissal might be qualified as manifestly unreasonable, which may result a compensation amounting to 3 to 17 weeks of salary in addition to the severance pay. On the other hand, the dismissal may be considered discriminatory, in which case the employer risks receiving six months' salary in damages.

Dismissal for refusal to vaccinate is therefore unacceptable.

2. But as an employer, you can raise awareness and promote vaccination

As an employer, you can encourage your employees to be vaccinated. No one can blame you for this encouragement because, as an employer, you are still obliged to look after the health and well-being of your employees and all other people who frequent your company.

Setting up a vaccination campaign under the supervision of a doctor and an external prevention service can be a way of encouraging employees to be vaccinated. However, the choice to vaccinate must always remain exclusively with the employee.

An awareness-raising campaign can also help to persuade workers to be vaccinated.

Finally, the employer can also work with incentives, in which he can freely determine what benefits he can attach to a vaccination (e.g. a bonus).

In any case, you must be careful not to force your employees to be vaccinated, as this would violate their fundamental right to physical integrity.

3. Are you allowed to ask about your employee's vaccination status and process this data?

The employer may ask his employee whether he has already been vaccinated or not.

The choice lies with the employee whether to give this information to his employer.

However, the employer is not entitled to process the data concerning the vaccination of his employee, even if this was given voluntarily (nor the confirmation of the appointment or invitation to vaccinate may be processed). This is because these are sensitive personal data, the recording of which is prohibited. There is no legal basis that would allow the processing of employee vaccination data (whether an employee has been vaccinated or not), even if the employee were to give his consent.

4. Are your employees entitled to vaccination leave?

As of 9 April 2021, employees who wish to be vaccinated during working hours are entitled to a short leave of absence. This means that they can be absent from work without loss of salary if they are vaccinated against the coronavirus during working hours. This applies to any required vaccination injection that takes place during working hours.

The employee may only use the right to short leave for the purpose for which it is authorised (vaccination against COVID-19). If the employee uses his right to short leave for another purpose, it becomes an unjustified absence for which the salary can be denied.

Only if the employer requests it, the employee has to prove that he has used his right to short leave in order to be vaccinated. 

Taking into account the legislation on data protection, the employer may only use the information he receives for the purpose of organising work and payroll administration. The employer is only allowed to register the absence of the employee as a short leave without stating the reason for the short leave.

The right to short leave for vaccination applies until 31 December 2021. It may be extended up to 30 June 2022 if necessary.

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Leila Mstoian

Leila Mstoian