Dutch lawmakers recently introduced a bill that would make it possible for employers to require a “corona pass” from employees, self-employed workers and volunteers in some cases, indicating their COVID-19 vaccination status. Despite the high number of infections since the introduction of this bill on November 23, 2021, the number of patients with COVID-19 who are hospitalized, or even end up in intensive care, is relatively low. Therefore, during a press conference held on February 15, 2022, the Minister of Social Affairs and Employment (SZW) reported that the bill is “going back into the toolbox.” So it seems that this bill will not make it into law.
Now that the bill is off the table (for the time being), the question arises as to whether employers are absolutely prohibited from requiring a corona pass from their employees for access to the physical workplace. We do not believe that there is an absolute prohibition. However, we do note that the health risks of the now-dominant Omicron variant are smaller than those of the previous Delta variant. It will therefore be even more difficult for employers to demonstrate that the duty of care for a safe and healthy working environment cannot be ensured without a corona pass. This consideration will have to be made on a company-by-company basis; a healthcare facility with elderly people simply has a higher risk of health problems than a package delivery service.