The Netherlands: Update on employers' use of CoronaCheck app

As previously discussed, there are several considerations Dutch employers need to keep in mind if they want to scan the QR code on their employees' CoronaCheck app. This discussion is now in full swing and CEOs of a number of multinationals have joined the fray.

Dutch State Secretary Dennis Wiersma of the Ministry of Social Affairs and Employment (‘SZW’) has answered questions in parliament about using the app (in Dutch only). According to the Ministry of SZW, employers may not at present require their employees to show a Covid pass to gain access to their physical workplace, because employees are exempt from the obligation to show a Covid pass.

At the same time, the Ministry of SZW seems to be leaving the door slightly ajar; Wiersma has reiterated that employers may ask their employees for their vaccination status if there is proper cause to do so. One proper cause might be where there are no alternatives to creating a healthy and safe working environment. And although Wiersma notes that employers cannot compel their employees to get vaccinated, he encourages them to appeal to their sense of moral obligation. As Wiersma puts it, “We as the government are doing the same.

We believe that there are three arguments indicating the ban on requiring a Covid pass is not absolute.

  1. First, the Ministry of SZW itself stresses that employers must provide a safe and healthy working environment. The interests of unimpeded access to the workplace and protection of privacy must therefore be weighed against the interests of employers and employees in providing a safe and healthy working environment. In other words, an employer should be allowed to deny anyone who is a potential hazard to themselves and others access to the office. We note that this would only be permitted in exceptional circumstances.
  2. Second, according to the Ministry of SZW, an employer may not deny its employees access to the office if the Covid app does not show a green light. This prohibition does not, however, say anything about additional measures that the employer may, or perhaps should, take to provide a safe workspace for employees and their colleagues if an employee cannot show a ‘green’ Covid app. The employer might therefore, in principle, deny such an employee access to the lunch hall, oblige them to wear a face mask and restrict their contact with colleagues to a minimum.
  3. Third, infections are increasing rapidly. This requires more vigilance on the part of employers. Employers, too, will have to do their bit to reduce infection rates. Targeted measures, such as introducing stricter policies on access to the office, may make a valuable contribution towards reducing infections.

The demands from the corporate sector are getting louder. Philips' CEO Frans van Houten and Nationale Nederlanden CEO David Knibbe, in particular, took a firm stance in a recent broadcast of the current affairs show ‘Op1’ (in Dutch only). Van Houten said “I believe that we are being far too quiet about this. As an employer of a multinational I would simply like to say that I expect everyone to get the jab.” Knibbe affirms that Nationale Nederlanden shares this view. “We also say that if you come to the office, you should be vaccinated or tested.

We expect the government to take a position on this before too long.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.