Investments in mitigating measures
Especially in the beginning, companies had to invest in measures to protect their employees from contracting the virus, such as placing screens, providing face masks and creating enough distance between employees and clients or guests. Employers facilitated employees working from home, which required desk furniture, laptops and headphones and a decent and secure internet connection. Later on, when the vaccinations were introduced, investments had to be made to inform and stimulate employees to get vaccinated and to give them time off to get the vaccine.
Because we are on uncharted territory, companies should also invest in obtaining information on their rights and obligations towards employees with regard to Covid-related employment issues. However, obtaining the right information has not been easy. Since, in the beginning of the pandemic, there was no specific case law on the topic yet, companies had to rely on the opinions of legal experts, who based themselves on similar cases, but felt compelled to add a disclaimer that it was unsure how a court would rule under these specific Covid-circumstances.
Developments in the legal world
It also requires continuous research to obtain up-to-date information. The developments in the legal world are unfolding as rapidly as new variants of the virus appear. There is a big difference in legal opinions that were generally adopted in 2020, in comparison to now. At the start of the pandemic, legal experts were reticent to advise that an employer could suspend an employee who refused to wear a face mask or terminate an employment agreement of an employee who refused to get vaccinated. By now, in several judgments, the court has given us points of reference on Covid-related issues. From these points of reference it can be derived that the court is willing to allow employers to take more drastic measures than the legal experts initially anticipated. And because there is more case law, legal opinions have become more reliable.
A scoop for Curacao
Remarkably, within the Kingdom of the Netherlands, the Court in First Instance of Curacao had a scoop on the topic. It was the first court to dissolve an employment agreement due to the fact that the employee refused to get vaccinated. And although the court ruled that the consequences of this termination were for the account of the employer and a termination compensation had to be paid to the employee, this was an unexpected outcome for legal experts, who generally assumed that a refusal to get vaccinated may lead to a termination by the court of an employment agreement if the employee is a care worker, but not if the employee is an office worker, which was the case at hand.
The Court in First Instance of Curacao gave another similar judgment on the topic at the end of 2021. In this judgment, the Court terminated the employment agreement of an employee who worked at a casino and who refused to get vaccinated. Although, according to the court, a vaccination mandate does not exist in Curacao and fundamental rights would be breached if an employer obligates employees to get vaccinated, such breach was considered justified in this particular case.
To this regard, the Court considered that, generally, an employer has a duty to ensure a safe work environment and that consequently, it has to mitigate any risks for employees in the execution of their work. This includes mitigating the risk of contracting the coronavirus, said the Court. The fundamental rights of an employee, such as respect of privacy and bodily integrity, can be opposite to the obligations of an employer to create a safe work environment.
According to the Court, in this case, the circumstances required that the employment agreement would be terminated. Such circumstances were, among others, that, except for that particular employee, all other employees of the casino were vaccinated. Furthermore, it was impossible for the employer to take alternative measures to protect the employees from contracting Covid-19, because they had to spend their break in a small space which could not be ventilated. Above that, the Court took into account that government regulations required the casino staff to be vaccinated in case the casino allows more than 100 guests. For the Court, it was evident that the casino had an interest to use her full capacity. All in all, the circumstances of this case were in favor of the employer’s interests. A limited termination compensation was awarded to the employee.
Case law in the European part of the Netherlands
This is not only a local development. Dutch courts have also shown more lenience towards employers. An example is an employee who refused to undergo weekly Covid-tests. He was a dancer who played a crucial part in the dance company. The court ruled that, because it was not possible for the company to take alternative measures to protect the other employees (for example, close contact between employees was inevitable) and it was financially not feasible to have a replacement on standby, the employer was allowed to suspend the employee without pay for as long as he refuses to undergo weekly tests. In this case, the fact that the company was hit hard financially by the Covid-measures, was also considered of importance.
Lessons to be learned
What are the lessons learned from the current developments in case law? More and more is possible for employers. As long as they can show that they have a compelling interest to take measures that may even breach fundamental rights and that they have invested in alternatives to protect their employees, but that this did not suffice to protect these employees (and guests or clients) from contracting the virus insofar possible, employers may even take more drastic measures, such as a vaccination mandate or a Covid-19 policy that requires periodic testing. This way, the employers are investing in the protection of their staff, in the company’s best interest.