The employees of the Californian carrot grower Bolthouse Farmer, who get vaccinated, will receive a bonus of no less than USD 500. According to said company, this is a small amount compared to the millions which the company has lost on safety protocols and staff reduction. The company, Dutch Delta Safe Security, is also offering its employees a bonus of € 100 if they get vaccinated. Reason: the clients wish for the company to be able to guarantee that all its employees have been vaccinated. However, the question is whether an employer can offer such an incentive to have its employee vaccinated.
At the moment, the answer to the question from an employment perspective is; yes it is allowed! The granting of a bonus by an employer to its employee is regulated by only a few rules. In general, an employer is allowed to grant a bonus to its employees at its own discretion. For example, there are employers who grant a bonus to their employees who, for the period of one year, have not reported incapacity to work. The most important rule, which must be taken into account by the employer, is that there must be no arbitrariness in the distribution of a bonus as this is against the principle of “a good employer’ (in Dutch: “goed werkgeverschap”). Furthermore, the employer must provide an explanation on why one employee is eligible to receive a bonus and the other employee is not.
The employer must at all times take into account the practical effects surrounding the registration of the vaccination, even though a vaccination bonus may be granted to the employee. Based on the privacy legislation, an employer may in principle not register the employee's medical data. The information on whether an employee has been vaccinated is related to his/her health and therefore qualifies as particular personal data as referred to in Article 16 of the National Ordinance, or Act, on the protection of personal data in Curaçao, Sint Maarten and the BES islands.
An employer may not (just) process any particular personal data of its employee. This is, in principle, prohibited. Despite the fact that only a few employers will knowingly maintain a list with regard to the employees who have been vaccinated, the employer will be required to register which employee is eligible for the vaccination bonus. This registration will inevitably show which employee has been vaccinated and which one has not been vaccinated. Therefore, based on the privacy legislation, a vaccination bonus may not be granted unless an exception occurs.
There are exceptions to the prohibition of processing particular personal data. In case such an exception occurs, the employers may register/process the data regarding the vaccination of their employees.
The first exception is set forth in Article 21, paragraph 1, sub f of the National Ordinance, or Act, on the Protection of Personal Data. According to this provision, the prohibition to process particular data does not apply if the processing is necessary for:
• Proper implementation of statutory regulations, pension schemes or collective employment agreements which provide for entitlements which are based on a person's health status;
• The reintegration or guidance of the employee in connection with his/her incapacity to work.
In addition, all the data related to health may in such case only be processed by or under the responsibility of a professional who is bound by professional secrecy or a duty of confidentiality (e.g., the company doctor).
The second exception occurs when the processing of particular personal data is done with the consent given by the person concerned and which consent is given explicitly and out free will by said person (Article 23 paragraph 1 sub a of the above-mentioned National Ordinance / Act).
However, according to common practices, since there is relationship of authority between the employer and the employee, the employee is in fact unable to freely determine his/her will. Only under exceptional circumstances, in which refusal does not have any adverse consequences, the consent given to the employer by the employee can be considered valid. However, this is not easily possible and acceptable in connection with the registration of the vaccination.
The final exception set forth in the regulations is the possibility to process personal data under circumstances wherein the processing of said data is necessary for a substantial public interest, proper measures are put in place to protect the privacy of the person concerned in such case and the processing of the personal data under these circumstances is based on a national ordinance/ law or the Commission on the supervision of the protection of personal data has granted an exemption with regard thereto. Currently there is no such national ordinance / law in place.
A special exception may apply to health care institutions/facilities and social services, insofar as the processing is necessary for the management of the institution or the professional practice concerned. However, please note that this should be determined on a case-by-case basis.