Employer was Allowed to Refuse an Unvaccinated Employee, who Refused to be Tested, Access to Work

A dance company was allowed to refuse access to a dancer who had not been vaccinated and who also refused to be tested. Thus, the employee was not entitled to wages either.

An employee of a dance company worked there as a dancer and an artistic assistant. In either position, it is impossible to apply the “one meter plus” rule, necessary to prevent further spread of the covid-19 virus. The employer therefore required every employee to do a self-test once a week and to stay at home and to be tested by the Municipal Health Service (GGD) in case of a positive result. The employee had not been vaccinated and refused to be tested. Since the employee was thus of no use for his work, his employer forbade him to continue working and also discontinued his wage payment.
In summary proceedings, the employee claimed admission to work and payment of his wages.

The Sub-district Court stated, first and foremost, that the obligations to be tested and to communicate the results thereof constitutes an infringement of the employee’s privacy and his physical integrity. The Sub-district Court also acknowledged that, according to the Dutch Data Protection Authority, legislation is required for testing for alcohol, drugs and medicines during working hours, that this is no different for testing for covid virus infection, and that the employer lacks the legal authority to require a test for access to the work. According to the Sub-district Court, however, this does not mean that the test rule is prohibited up-front.

The Sub-district Court judged that the requests for a weekly self-test and or forwarding the results were reasonable because they were necessary to create a safe working environment. The rule was proportional since there was no less far-reaching way to achieve the objective. The Sub-district Court therefore held the opinion that the infringement of the employee's fundamental rights was justified. The Sub-district Court rejected the employee's argument that a self-test would be an inappropriate means for curbing the spread of contamination. According to the Sub-district Court, this argument was based on an excessively absolute interpretation of a scientific article. The Sub-district Court added that the employee was advised to continue to be informed about the value of self-tests and also to set requirements for the tests to be used.
According to the Sub-district Court, there was no infringement of the privacy rules, because simply communicating the results of a test is not subject to the provisions of the General Data Protection Regulation (GDPR).
Since nearly all of the employee's activities required a distance of less than the “one meter plus” rule away from others and since the employer could not offer any other work to the employee, the Sub-district Court decided that the suspension was reasonable. As a result, the employer would have to try and find replacement for the employee. It was impossible for the employer to pay the extra wage costs, especially during the Covid period. Therefore, according to the Sub-district Court, the employee had to bear the financial consequences of his own refusal.

Of course, the Sub-district Court’s judgment relates to a quite specific situation of an employee who can impossibly apply the “one meter plus” rule in his work and for whom no work was available that would have allowed him to apply it. But there are more employees in non-essential retail and personal care facilities, where physical proximity is unavoidable, to whom this applies. Also In other situations, such as in case of working abroad, employers already face employees who cannot do their work because they have not been vaccinated and/or tested,. The above judgment of the Sub-district Court is therefore also important for many other employers.
And even though many of these employers will welcome the Sub-district Court’s decision, substantial doubts should be raised as regard the justification of its judgment.
The Sub-district Court rightly assessed whether the infringement of the employee's fundamental rights was objectively justified. The means by which the objective is to be achieved and by which fundamental rights are infringed should then be appropriate and necessary. The following requirements are assessed:
 the legitimacy: is there a justified aim for the infringement?,
 the subsidiarity: is there a means to achieve the objective that does not infringe or that is less infringing? and
 proportionality: is the chosen means in proportion to the objective to be achieved?.
Here, the Court mixes-up the requirements of subsidiarity and proportionality by stating that the measure chosen was proportional because there was no less far-reaching way to achieve the objective.

The decision that the GDPR does not apply for the obligation to communicate the results of the test is even downright incorrect. For the purposes of the GDPR the processing of personal data includes the collection, retrieval and use of personal data. For sure, the employer who requests the results of the test and uses it to determine whether the employee can do his job processes personal data and is therefore subject to the provisions of the GDPR. Since it concerns medical information, the GDPR even prohibits the processing, unless one of the conditions mentioned in the GDPR is met. The Sub-district Court should at least have explained why one of these conditions was met.

Furthermore, the Sub-district Court does not appropriately justify the reason why the employee is not entitled to wages, and it fails to provide a clear structure of the justification of its judgment.

The Sub-district Court has delivered a judgment on an important, topical question.
A decision of so much importance deserves a better justification. It would have made it more convincing.