Now that the Belgian vaccination campaign is well on its way – having started with the vaccination of the working population – employers are beginning to wonder if they can reopen their offices solely for vaccinated employees or if they can somehow sanction or deny access to employees who refuse to be vaccinated?
The simple answer to questions relating to the unequal treatment of vaccinated and non-vaccinated employees is that the employer should not do this in the absence of a legal pretext. In the first place, it would not be in conformity with the GDPR to process any data on the vaccination-status of employees, because this is considered as sensitive data for which the employer cannot use his legitimate interest as grounds for processing, nor can he use the consent of the employees. The processing of the data would only be possible in case of a legal justification.
It is possible that such a legal pretext will arrive in the coming months. There have been discussions at the political level to introduce a sort of corona-pass on the basis of which vaccinated persons could regain more liberties. However, equality institutions and the Belgian Data Protection Authority do not seem to favour such a solution.
The inequal treatment of employees based on vaccination could also be seen as a direct or indirect distinction grounded on health status, the results of which might constitute a prohibited discrimination. It does seem possible to justify the distinction as the preservation of the health of the employees and clients, which can be seen as a legitimate purpose. For example, prohibit non-vaccinated employees from returning to the workplace, while allowing vaccinated employees to return, may be proportional if all the employees had the chance to get their vaccine and if the employer would also accept a negative test. In this case however, it will be impossible to process the data concerning which employees are vaccinated and which are not, without legal grounds. Therefore, it will be impossible to apply the distinction in practice.
Taking other measures, like dismissing non-vaccinated employees or only awarding certain premiums to vaccinated employees, would be even harder to justify. The mandatory vaccination as a condition to perform a job, seems to be possible only on the basis of a legal norm. E.g. Belgian law obliges healthcare personnel to be vaccinated against Hepatitis B. The Federal Public Service Employment also has stated that the vaccination of the employees cannot be used as a target to award fiscally attractive collective premiums (with the system of CBA n° 90).
Back to the office?
For now, the general obligation to telework, for all employees in functions for which it is possible, remains applicable. This means that employees, even when vaccinated, are not allowed to work from the office. Furthermore, the other rules, e.g. the social distancing measures, remain in effect until they are lifted.
From 9 June, employers can organise come-back moments for their employees, for 1 day per week with a maximum presence of 20% of the employees (50% for SME’s). Vaccination is not a condition for the participation in these come-back moments, and employees cannot be obliged to participate.