The employee had worked as a dancer for Stichting Dans, Dans en Theater since 2006. In mid-October 2021, the employer asked him to get tested for the coronavirus where relevant. He refused. From late October 2021, the employer suspended him and stopped paying his salary as of 1 December 2021. From 29 November 2021, the employer tightened its policy and COVID protocol by requiring everyone to take a self-test once a week. The employer provided everyone with self-tests. On a positive result, the employee must inform the employer, stay home, and get tested by the public health service (GGD). The employee refused to comply with this. He sought reinstatement and continued payment of wages in summary injunction proceedings.
The subdistrict court ruled as follows. This case concerned the permissibility of the employer’s COVID policy, in particular the testing requirement and the obligation to share the result with the employer. This constitutes an intrusion on the employee’s privacy and bodily integrity. That a tension can arise between providing a safe working environment and an employee’s privacy/personal integrity was already known before COVID. For example, the Dutch Data Protection Authority stated on 15 March 2019 that legislation is required for testing for alcohol, drugs or medication during working hours. The position is not fundamentally different for COVID testing. The fact that no legislation yet exists for this does not mean the employer’s testing measure is simply prohibited.
As a dancer, the employee comes into close contact with fellow dancers during rehearsals and performances. Given how contagious COVID is, the subdistrict court considered the employer’s measure – requiring dancers to take a weekly self-test and share the result – reasonable. It limits the risk of dancers (vaccinated or not) coming into contact with someone who has COVID. Alongside the employer’s normal safety rules, such as keeping distance, washing hands and wearing a face mask, the measure can be regarded as (at least) necessary to create a safe working environment for the dancers (and their families) during the pandemic. No less far-reaching means of achieving the same goal was proposed, and none is readily conceivable. The employer’s measure is therefore proportionate. In the subdistrict court’s view, the employer’s aim of creating a safer working environment outweighs the employee’s objection to testing and sharing the result. The intrusion on the employee’s fundamental rights is justified.
The employee argued that suspension was too far-reaching a measure for his refusal to test, since he could continue performing duties other than dancing. The employer countered that his duties involve close contact (under 1.5 metres) almost 100% of the time. The employee did not sufficiently dispute this. Against that background, the employer’s testing policy is reasonable. The employer rightly suspended him. The employee bears the financial risk of his refusal to take self-tests and share the result. He is not entitled to pay.
For the full ruling, click here (in Dutch).
On 5 January 2022, the House of Representatives was due to debate the bills on 2G and COVID access passes in the workplace. This may bring more clarity on whether an employer can require employees to show a QR code or use self-tests.
For the Temporary Act on Broadening the Use of COVID Access Passes, click here (in Dutch).
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
