As Belgium begins rolling-out its vaccination programme against the coronavirus, employers may wonder whether they can make a vaccination against the virus obligatory for their employees.
The simple answer to this question is no. The most important obstacle that prevents employers from introducing such an obligation is the right to privacy of the workers, which includes the right to respect their physical integrity. Without a legal provision that grants the employers the possibility to make a vaccination mandatory, there can be no justification for a restriction of this right. Until now, Belgian law has only recognised one general mandatory vaccination and that is for children against Polio. In the specific case of some sectors (healthcare, pharmaceutical laboratories, etc.), the Belgian Code on the Well-being at Work, provides an obligation for employers to vaccinate their workers against Hepatitis B, Tetanus and a test on Tuberculosis, under the supervision of an occupational physician. For now, there is no legal provision that grants a legal basis for an obligation to vaccinate against Covid-19 and the Belgian government does not seem to have any intention to make the vaccination mandatory.
In addition to the right to privacy and the restrictions of the Code on Well-being at Work, another obstacle could be the fact that the refusal of workers who are not vaccinated, could constitute a discrimination based on future health status. However, such unequal treatment could be justified during a worldwide health crisis.
Furthermore, an employer is not allowed to process data on the vaccination status of its employees, as this would involve the processing of sensitive data on their health status, which is, in principle, prohibited by the GDPR.
However, the fact that employers cannot force their employees to receive a vaccination does not mean that employers cannot promote the vaccination against COVID-19. Also, when vaccines eventually become freely available in the market, it could even be an option for employers to provide free vaccines to their employees, as is already the case in many companies with flu shots.
For more information on these articles or any other issues involving labour and employment matters in Belgium, please contact Chris Van Olmen (Partner) of Van Olmen & Wynant at firstname.lastname@example.org or visit www.vow.be.