On 22 November 2021, the bill ‘Temporary Act to Extend the Use of Coronavirus Entry Passes’ was presented to the Lower House of Parliament. This bill introduces the option, under certain conditions, of using a Coronavirus Entry Pass (“CEP”) in the workplace.
After the entry into effect of this Act, workplaces can be designated by ministerial regulation as places where the CEP obligation applies. This means that employers will not be free to choose whether to use a CEP. Workplaces will only be designated as places subject to a CEP obligation if this is necessary from an epidemiological perspective. This is not very likely to be the case in an office situation. Therefore, the scope of this bill is limited.
Below, we will discuss the main aspects of the new bill.
Substance of the Bill
The new bill regulates the following four points with regard to the coronavirus entry pass:
- In sectors where customers or visitors are already obliged to present a QR code, it will become possible to impose this obligation on employees as well. Employees in the hospitality sector are a possible target group.
- Workplaces beyond the sectors that are subject to the CEP may also set the condition of presenting a CEP.
- In the future, visitors to workplaces – for example, visitors to a factory – may also be obliged to present a CEP.
- In categories 2 and 3, no obligation to present a CEP will apply if the employer ensures in a different way, set out by ministerial regulation, to have a level of protection in place that is equivalent to having a coronavirus entrance pass.
Use of the Coronavirus Entry Pass in the Workplace
The bill makes it possible to extend the obligation to present a QR code to workplaces in sectors where this obligation does not apply yet. It is possible that factories will be included in this extension.
Employers will not be free to choose to implement an obligation to present a CEP. In a ministerial regulation, specific areas will be designated where this obligation will apply. A CEP certificate will only become compulsory on locations where this is necessary from an epidemiological perspective. In principle, this will only concern locations where the risk of being infected with the coronavirus is high, such as places with poor air quality and the impossibility for people to keep distance.
The CEP obligation in a workplace concerns the ‘3G’ certificate. Employees will be given access to the workplace if they present a vaccination certificate, a certificate of recovery, or a negative test result. Presenting a 2G certificate, which allows access only on the basis of either vaccination or recovery, will not be an option. This obligation will also apply in sectors where customers and visitors are obliged to present a QR code based on recovery or vaccination.
No Coronavirus Entry Pass when Level of Protection is Equivalent
If a workplace will be designated as a location where employees are subject to a CEP obligation, the ministerial regulation concerned will provide that this obligation will not apply if the employer ensures in a different way, set out by ministerial regulation, to have a level of protection in place that is equivalent to having a coronavirus entrance pass.
This means that the employer is free to choose whether it will require its employees to present a coronavirus entry pass, or will apply the alternative measures. If the employer chooses the alternative measures, the employer will not be allowed to make distinctions between measures. The framework as set by the government must be followed.
What if the Employee Refuses?
If the employee refuses to present a QR code at work, both parties will be required to find a solution together. Possible solutions are an alternative workplace or a temporary change to a position that is not subject to the CEP obligation.
If the employer is unable to offer an alternative, or if the employee rejects the alternative, it will be an option – depending on the situation – to stop paying the employee’s salary. The employer can stop paying the salary if the fact that the employee is not working should reasonably be for the account of the employee. This may be the case if the employee refuses a reasonable alternative, or if it can reasonably be required of the employee to test for the coronavirus, given the frequency and concrete options of testing. In exceptional situations, the employer may dismiss the employee.
Privacy
The implementation of a CEP obligation in the workplace will entail the processing of special personal data by the employer. In principle, the processing of personal data concerning an employee's health is prohibited under the GDPR. However, an exception to this prohibition applies if such processing is necessary for reasons of public interest in the area of public health. This exception occurs here, if a statutory basis will be created for it (by the new Act) .
The employer must be able to rely not only on an exception to the ban on processing, but also on a ground for the processing. This ground exists, because the new Act creates a statutory obligation for the employer in its role of controller.
Conclusion
The bill is currently under discussion in the Lower House of Parliament. Before it can enter into effect, the bill must first be approved by the Lower House and the Senate. If this bill is adopted, employers may be confronted with an obligation to present a CEP in the workplace. Non-compliance with this obligation may lead to administrative sanctions or penalties.
Would you like to know more? Please contact Ilse Baijens or Ester Damen.
