Vaccination/Testing in companies : there is no legal obligation
Following the recent publication of a press release about an American company that would like to impose vaccination to its employees, ALEBA would like to share a legal opinion which has been ordered from a law firm.
The employer cannot require an employee to undergo an antigen test (rapid antigen test or PCR) or to communicate the test results.
Nor can the employer require information on the employee’s vaccination status as the law currently stands, nor can the employer require the employee to be vaccinated.
After analysis of the existing European and Luxembourg texts, the law firm’s opinion is unanimous.
Indeed, in May 2021 (opinion delivered on 11 June 2021), ALEBA put two major questions to its lawyers following various queries made by one of its Delegations concerning:
– The possible right of employees to object to antigen tests;
– The possible obligation of the employee to inform the employer about his/her vaccination status and the vaccine he/she has received.
This request was only aimed at the fight against Covid-19 and will therefore only deal with these issues in that context.
First of all, it should be remembered that the employee cannot be deprived of his/her fundamental freedoms (right to health and safety). He/she is also entitled to respect for the protection of their personal data and medical confidentiality.
- As for the general principles
The two anti-covid measures on which ALEBA has requested information interfere with the employee’s private life and his/her fundamental freedoms.
These rights are protected by higher standards:
– The right to privacy. This right also includes the right to physical integrity (i.e. the right to refuse a vaccine and/or a medical test such as a PCR or a rapid antigen test) and the right to medical secrecy (only the employee can decide who can know about his/her medical situation – pathology, current treatments, etc.).
– Protection of personal data.
Thus, the principle consists in the employer’s obligation to respect the fundamental rights of its employees.
However, in labour law and in the context of the current global pandemic situation, these employees rights may conflict with the framework principle which is the employer’s obligation to ensure the health and safety of employees, customers and suppliers.
The corollary for the employee is the obligation to safeguard his/her own health and safety and others at work.
As in any contractual framework, the parties perform the agreements in good faith and with loyalty.
It should be noted that in the abundance of all laws and regulations of the Grand Duchy of Luxembourg, the law firm did not find any legal or regulatory provisions expressly authorising the employer to carry out the two anti-covid measures in question (screening obligation and vaccination obligation).
In their view, these texts as a whole are not sufficient to allow derogation from the general principle of respect for private life and protection of personal data.
However, they do not exclude the theoretical hypothesis that, in the context of a particular dispute, a judge would be led to adopt an extensive interpretation of the Labour Code and consider that an employer would be entitled to impose the two anti-covid measures in question.
In any event, as the law case currently stands, the general principle of the supremacy of privacy and the protection of personal data remains in place.
2.1. About the right to object to antigenic and PCR tests
With regard to antigenic tests in general (whether rapid antigen tests or PCRs in the laboratory), in compliance with the fundamental freedoms acquired by the employee, the employer is therefore unable to impose such tests on the employee without risking violating his/her right to physical integrity and to dispose of his/her body, as well as respect for privacy.
As mentioned above, there is no law or regulation that allows the employer to derogate from this in the context of the fight against Covid-19.
Only the health inspection and doctors are entitled to ask the employee to take a test.
In the particular case of self-tests, these can only be carried out on a voluntary basis, so it is not possible to force/coerce employees to undergo them. They remain voluntary.
The answer to the question is therefore that employees can object to self-testing and, in general, to having an antigen test.
2.2. The obligation to inform the employer about its vaccination status
In general, the employer has no right to demand or collect the results of tests, which are subject to medical confidentiality.
Specific authorities have been set up to carry out contact tracing, namely the Health Inspection.
Concerning vaccination, there is no law that makes vaccination against COVID-19 compulsory in Luxembourg (in Luxembourg, outside the health sector, there is no vaccination obligation).
Consequently, the employer cannot force the employee to be vaccinated or even, for the time being, to provide a vaccination certificate.
Vaccination is a matter of personal freedom of disposal and more generally of the employee’s private life.
Finally, according to the GDPR, the employer is not allowed to collect and hold a list of vaccinated employees.
This is sensitive personal medical data.
The employee or applicant for employment is not required to indicate his/her vaccination status.
Finally, it is forbidden to punish an employee who refuses to be vaccinated or to promote those who have been vaccinated.
Thus, the employee does not have to inform the employer of his/her vaccination status and the employer is not, for the time being, entitled to inquire about it.
In conclusion, the employer cannot require an employee to undergo an antigen test or to communicate the results of the test.
Nor can he require information about the employee’s vaccination status as things stand.
An employee who would use his/her right to refuse to be tested and/or vaccinated or to communicate his vaccination status and/or the results of his screening could not be sanctioned (dismissal, loss of salary, warning, etc…). At best, the employer could put the employee on “garden leave” (a special leave paid by the employer which cannot be deducted from the employee’s legal leave).
Nevertheless, ALEBA reminds that everyone still has to respect the governmental measures implying to have to wear a mask, to respect social distancing, etc.
Lastly, as a reminder, the employee still has the legal obligation to notify the employer of his/her illness on the same day (without any obligation to specify which illness), respectively quarantine/isolation. Then, the employee has to submit to the employer, at the latest on the eighth day of his/her absence, an official quarantine/isolation order issued by the competent national authority and serving as a certificate of incapacity for work.
The only legal obligation remains that the employee who has a positive self-test must immediately go into self-isolation and inform his or her employer of his or her absence, since knowing that he/she is infected by COVID-19 and (still) going to the workplace could possibly constitute a fault, the sanction for which could, depending on the labour judge’s assessment, go as far as dismissal.