Not yet vaccinated? Keep teleworking (interview with Filip Tilleman in De Standaard newspaper)

Are companies allowed to exclude employees from the workplace if they have not (yet) been vaccinated? 'Only a legal framework can shed light on this matter,' says Employment Lawyer Filip Tilleman.

Morgan Stanley employees and clients who have not received their COVID-19 vaccine will be barred from entering the bank’s New York offices, according to an internal memo seen by the Financial Times. As such, Morgan Stanley wants to get employees back to the workplace as soon as possible and get rid of other coronavirus measures, such as social distancing and the requirement to wear a face mask.

‘If you can go to a restaurant, you can come to the office,’ CEO James Gorman announced last week. Non-vaccinated employees will have to continue to telework reports the BBC based on an anonymous source. Even today, the bank has workplaces reserved for vaccinated people. And BlackRock, the world’s largest asset manager, is rolling out a similar policy.

Will it also inspire Belgian companies to impose similar conditions, now that teleworking will no longer be mandatory from 1 July? And can an employer deny employees access to the workplace because he or she has not been vaccinated?

Privacy vs safe workplace

‘Both the competent government service and the Data Protection Authority state very clearly that an employer may not ask whether an employee has been vaccinated or not and therefore cannot link any negative consequences to this,’ says Geert Vermeir, Legal Expert at SD Worx. ‘For them, the right to privacy clearly takes precedence.’ Similarly, coronavirus tests can only be offered on a voluntary basis.

But in the absence of a clear legal framework, it is all based on interpretation, says Vermeir.

Employment Lawyer Filip Tilleman equally does not believe that there is a conclusive legal answer yet. Should an employee be denied access to the workplace or even fired for not getting vaccinated and should the case consequently go to court, the judge will find himself in a ‘very precarious situation’. It will entail a radical clash of two fundamental and equally valid values: the employer’s duty to provide a safe working environment – well-being at work is a legal obligation – and the employee’s right to privacy. Especially in a workplace where everyone works shoulder to shoulder and where no distance can be maintained, this will bring matters to a head.’

Which value should be given priority is ‘extremely’ difficult to determine, says Tilleman. Only a clear legal framework can resolve this. Otherwise it clearly will lead to discussions and problems.’ Vermeir, who says that questions -albeit not many– are mainly coming from the care sector, agrees: a legal framework is ‘appropriate’.

Worried about care staff

In the care sector, the discussion flared up earlier in our country after some of the care staff refused to be vaccinated. Margot Cloet, top manager at Zorgnet-Icuro, the Flemish umbrella organisation for hospitals, argued in favour of compulsory vaccination. However, that proposal was turned down by the government, which wants to continue to focus on raising awareness.

The Federation of Enterprises in Belgium (FEB/VBO) is also opposed to compulsory vaccination. ‘This has little to do with safety at work,’ says Kris De Meester, Adviser on Welfare at Work at FEB/VBO. ‘Vaccinated people may be protected against COVID-19, but they can still infect others with the virus. Consequently, the safety of colleagues is still highly dependent on their behaviour.’

De Meester therefore does not understand Morgan Stanley’s decision. ‘Just because someone is vaccinated doesn’t make them more suitable for a job.’ The biggest risk, according to him, is that a large group will be excluded. ‘If every company starts acting like this, the economy will stagnate,’ he says.

Source: this interview was written by Korneel Delbeke and appeared in De Standaard on 24 June 2021 (written in Dutch).

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