Can an employer require coronavirus vaccination?

In principle, an employer cannot compel an employee to be vaccinated. A vaccination mandate infringes upon the fundamental right to bodily integrity, which is protected by the Constitution and the ECHR. It only comes into play in very exceptional situations—when vaccination is necessary and proportionate and no less restrictive alternative exists—and even then, dismissal for refusal is usually not the correct course of action.

For employers, it can be important that employees are vaccinated, for example during a pandemic. At the same time, vaccinations are not mandatory in the Netherlands. The question of whether an employer may enforce vaccination came explicitly to the fore during the coronavirus crisis. We explain the main points.

Fundamental rights limit a vaccination mandate

Mandatory vaccination affects Article 11 of the Constitution, which protects the inviolability of the body. Restrictions on that right can only be made by or pursuant to law.

In addition, Article 8 of the ECHR protects the right to respect for private life, including physical integrity. Here, too, interference is permitted only to the extent provided for by law and is necessary in a democratic society — for example, for national or public security, economic well-being, or the protection of the health of others. In those cases, a greater interest may take precedence over the individual right.

Can an employer ever force a medical procedure?

Deviating from the inviolability of the body is permitted in case law only in exceptional circumstances, but it does occur. In 2015, the Supreme Court ruled (ECLI:NL:HR:2015:3193) that an employer was entitled to dismiss an employee who refused to undergo a blood test (necessary for his position). The case involved an employee at a lead processing company, for whom the test was necessary to monitor his own health; for the employer, it was the only way to keep him employed. That ruling later drew much criticism, and moreover, it concerned a blood test, not a vaccination — which, according to some, constitutes a more serious infringement.

The test: necessary, proportional, and subsidiary

Whether an obligation holds up depends on strict conditions set out in Article 8 of the ECHR. It is important whether it was sufficiently clear to the employee beforehand that the measure was part of his position. In the case mentioned, it was taken into account that the employee could reasonably have expected that his position entailed such a test.

In addition, the measure must be necessary: ​​proportionate and in line with the principle of subsidiarity. The core question is whether the same objective cannot be achieved with a less restrictive measure. This was not the case with the medical test — only that test provided a definitive answer. However, for protection against an infectious disease, less restrictive alternatives are often available, such as protective equipment, social distancing, or modified work activities, making a mandatory vaccination more difficult to justify.

Why dismissal is usually not the solution

Very occasionally, positions are conceivable where less restrictive measures simply do not work — consider caring for vulnerable people where full protective clothing is not possible. Even then, there are often better solutions than dismissal, such as temporary reassignment, especially in sectors with staff shortages. Moreover, a dismissal procedure encounters many practical objections. Furthermore, a person may sometimes still be infectious after vaccination, so protection remains advisable in any case.

Frequently Asked Questions

Can my employer require me to get vaccinated?

In principle, no. Mandatory vaccination affects fundamental rights and is only conceivable in very exceptional, well-substantiated situations.

Can I be fired if I refuse vaccination?

That is highly exceptional and legally risky for the employer. Usually, lighter solutions, such as reassignment or protective measures, are both mandatory and more sensible.

Does an exception apply to certain positions?

Possibly, if vaccination is demonstrably necessary and proportionate and no less intensive alternative exists. This requires a careful legal assessment on a case-by-case basis.

Questions about vaccination or medical requirements at work?

The line between the employer's interests and the employee's fundamental rights is thin and depends on the specific case. The employment lawyers at MKB Juristen help you make a careful, legally sound assessment. View our expertise in employment law or schedule a free intake consultation .