First ruling on obliging an employee to conduct a COVID-19 self-test

Is it permitted for an employer to request an unvaccinated employee to conduct a self-test at least once a week?

This question was recently answered in the affirmative by the District Court of Amsterdam in summary proceedings.

Facts

This case concerned an employer (a dance company), with whom a dancer had been employed for an indefinite period since 2017. In October 2021, it was announced in a group discussion that performers must also have a corona safe pass (QR code) in order to enter the theatre. The employee then informed the group by e-mail that he did not have the QR code that was required for the performance. He requested a meeting with his employer.

Ultimately, the employee did dance in the performance in question, as it turned out that the theatre did not actually ask for a QR code from the dancers. One day later, the interview requested by the employee took place, despite the fact that the employee no longer considered this necessary because he could (apparently) perform without a QR code. Following this interview, the employee was requested not to appear at work. After further e-mail exchange and another interview, the employer informed the employee by letter:

‘We asked that you be tested for the coronavirus if necessary. You do not wish to comply with this request. We respect and regret that. At the same time, we note that you can no longer be deployed as a dancer or in any other way for us as long as there is no prospect of an end to the corona pandemic and the associated measures’.

The measures taken by the employer included a suspension and a wage freeze – which, as a gesture of goodwill, did not take effect immediately, but as of 1 December 2021.

The employer subsequently tightened up the applicable policy and protocol, asking everyone to take a self-test provided by the employer once a week. In case of a positive test result, employees were required to inform their employer, stay at home, and take an official health services (GGD) test.

In summary proceedings, the employee claimed salary and redeployment. He disagrees with his employer’s policy for the following three reasons:

1. The employer has stored special personal data, which is in breach of the General Data Protection Regulation (GDPR).
2. The obligation to test violates the employee’s fundamental rights to privacy and his physical integrity.
3. The suspension is not properly motivated by the employer and is inadmissible.

Area of tension

The self-testing requirement and the communication of a positive test result to the employer results in a violation of the employee’s privacy and physical integrity. On the other hand, the employer has the obligation to ensure a safe working environment.

The question for the court is whether the measures taken by the employer are acceptable.

1) GDPR applicable?

The court acknowledges that there is currently no legal ground (for example in the temporary anti-pandemic provisions) requiring a test before an employee is admitted to work. However, this does not mean that the obligation to test is prohibited anyway, according to the judge. The court ruled that merely having to inform the employer of the result of a test does not fall within the scope of the GDPR. Furthermore, it has not been established that the employer stores the test results of the employee in any way, so that the GDPR does not apply here.

2) Permissible infringement of fundamental rights?

According to the court, the fact that the employee is not always able to keep sufficient distance from his fellow dancers/students during his work as a dancer means that the employer has no other option than to make regular testing compulsory for the dancers in order to create as safe a situation as possible on the shop floor. The employee argues that the self-test as a measure is not suitable to limit the chance of contamination, because the self-tests do not work well when one has (cold) complaints, referring to a recent study by the UMC. The judge passed over this but did say that the employer must continue to inform himself about the value of self-tests.

A further consideration was that, given the employee’s prominent role in the company, the employer would have to find a structurally deployable replacement for him, which would be risky for the employer and would require time and money. In view of the current corona measures, the employer cannot bear the cost of double salary during this period.

Based on these circumstances, the employer’s interest outweighs the employee’s interest in refusing. The infringement is therefore justified in this case.

3) Is suspension the right measure?

The judge considers the suspension to be appropriate in this situation. The employer has demonstrated that almost all of the employee’s work involves contact with others at a distance of less than 1.5 metres. Therefore, the employer’s testing policy is reasonable and so is the suspension and wage freeze because the employee refuses to comply. In short: the employee bears the financial consequences of his refusal.

What does this mean for you as an employer?

The question whether a (self-)testing obligation may be imposed by every employer cannot be answered in general terms. The circumstances of each individual situation will have to be considered, weighing up whether the employer’s interest in ensuring a safe working environment outweighs the infringement of an employee’s fundamental rights.

We will keep a close eye on the developments in this regard. Do you have any questions about this article? Please do not hesitate to contact us.