Employers (suddenly?) allowed to ask about vaccination status
‘Of course employers can ask whether you have been vaccinated’, suggested the Minister of Health during the last coronavirus press conference. ‘Employers may ask about vaccination status, is suddenly the opinion of the government’, was the headline in the Volkskrant (a Dutch national newspaper), shortly afterwards.
Lack of clarity
There seems to have been lack of clarity about whether employers may ask whether employees have been vaccinated. The Ministry of Social Affairs has for example recently changed its position. Where the Ministry first explicitly stated on its website that an employer may not ask about the vaccination status of his employees, the official website of the government now explicitly states that this is indeed possible. The Dutch Data Protection Authority has not always been clear about this either. For example, last year, the Authority stated in the Volkskrant that employees may not be asked this question.
From a legal perspective, however, the situation has (for now) remained unchanged. Asking about an employee’s vaccination status is allowed, as the law does not prescribe that an employer may not ask this question. However, the answer is considered personal data, the processing of which is in principle in violation of the General Data Protection Regulation. It should furthermore be noted that the 'processing’ of personal data includes more than just recording or storing it. For example, it also includes consulting and using. If, as an employer, you do not want to run any risks, it is simply advisable not to ask about the vaccination status. Moreover, there is little point in asking, given that an employee may refuse to answer and the employer may not take any action following a certain answer.
During the most recent coronavirus press conference, the Minister of Health also revealed something about the future. He indicated that he does want to offer the option of registering the vaccination status of employees to employers in healthcare. In all likelihood, the government is considering new legislation. Belgium, France and England, where the General Data Protection Regulation is also in force, have already preceded us in this.
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Sam E.J.M. van Well
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