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    Dismissal for employee who refuses vaccination?

    Several employees have said they won’t have themselves vaccinated against COVID-19. Are we allowed to dismiss them when push comes to shove?

    Employers cannot compel employees to have themselves vaccinated. This would violate the constitution, which states that everyone has to right to bodily integrity, except for restriction imposed by or pursuant to the law. The Cabinet of the Dutch government has already announced that they will not enact a law to make vaccination mandatory. Employers can therefore not compel employees to get a vaccination. But can an organization impose consequences to employees who decide not to have themselves vaccinated?

    Justification

    Employees cannot invoke their fundamental rights all the time. Sometimes, such a fundamental right must make way for another (major) interest. In the case of COVID-19, there is such another major interest: public health. Moreover, the rights and liberties of other people also come into play. The question therefore is: are the interests of the employer in having employees vaccinated significant enough to legitimize a dismissal in the event an employee refuses to do so? It is expected that in most cases, a judge will rule that the employer’s interests are not significant enough. After all, there are various other options available, such as implementing coronavirus protocols. And if that is not enough, you can have an employee transferred to another department or location where the risk of contracting a COVID-19 infection is much lower. The expectation is that in most cases, the interests of your organization must make way for the interests (i.e. rights) of the employee.

    Medical staff

    For some professions, having employees vaccinated is more important than for others. An example is medical staff. It is possible that in such an instance, the interests of an organization will trump those of an employee, leading to the legitimization of dismissals in the event employees refuse to have themselves vaccinated. Yet, it is ultimately up to the court to have the final saying as to which interests are more significant.

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