international employment law firm alliance L&E Global

Netherlands: Be vaccinated or unvaccinated; that’s what the LeasePlan workplace is all about. Rightly so?

LeasePlan is in the news by calling on all its employees to come back to the office, under one explicit condition: being vaccinated against COVID-19. Unvaccinated employees have to work from home. Many foreign companies preceded LeasePlan. Until the beginning of this week, employers in the Netherlands are very cautious. After all, there is no legal basis (yet) for obliging an employee to be vaccinated. Furthermore, under the privacy and health and safety legislation, employers are not allowed to ask or check whether employees have been vaccinated or not. Let alone linking (disciplinary) measures to whether or not they have been vaccinated.

Yet LeasePlan took the plunge this week, as did Netflix. LeasePlan defends its policy by pointing out its statutory duty of care for good and healthy working conditions. The psychological health of its employees in particular suffers from the continuous working from home and little contact with colleagues, according to LeasePlan. LeasePlan wants the feeling of togetherness back, which is also in the interests of the staff.

At the same time, LeasePlan recognizes that its policy is a legal gray area. After all, (indirectly) forcing employees to be vaccinated goes against legal fundamental rights and the freedom of choice of employees. The national trade union FNV is outraged and calls the policy ‘reprehensible’.

Is LeasePlan’s approach justified?

I think the policy is defensible. Psychological complaints caused by working from home are increasing, as has been reported by trade unions and health insurers. Employers must also prevent the risk of contamination from COVID-19 in the workplace. LeasePlan rightly takes its statutory duty of care for healthy working conditions seriously. The legally established ‘good employership’ also plays an important role. It is therefore important that LeasePlan offers unvaccinated employees good facilities to be able to (continue to) work at home and to keep in touch with colleagues.

Some questions do arise. Can LeasePlan refuse unvaccinated employees to the office if they have a recent, negative corona test? Can LeasePlan refuse employees at the office if they are not vaccinated for religious reasons? Apart from the problem that LeasePlan is not allowed to ask for this (medical) information on the basis of (privacy) legislation, let alone check and/or process it, in my opinion it will not be possible to exclude these employees from the office. And how should LeasePlan deal with unvaccinated employees who cannot work from home? Think of the receptionist, security guards. It follows from the law and case law that they will generally be entitled to continued payment of wages, even if they are at home (with other or no work) because of the employer’s policy. We have to wait for the first actions of individual employees or trade unions.

Whatever the case; partly due to the introduction of this daring policy by LeasePlan, the discussion has now erupted, which means that new legislation may be introduced sooner and thus the desired clarity for Dutch companies. And that is in any case a positive development and thanks in part to LeasePlan’s statement.