The QR code in question is a proof of vaccination, recovery, or a negative test result for Covid-19. Because of this, “general principles” apply from the point of view of labour law, according to Gilles Dall’Agnol, a lawyer for law firm Allen & Overy who specialises in labour law.
In an interview with our colleagues from RTL.lu, Dall’Agnol explained that an employee risks sanctions if they do not turn up at their workplace when they are expected to do so. These sanctions span from a fine or a withholding of the employee’s salary to the termination of the employment contract.
However, Dall’Agnol pointed out that there are “options for compromise": The employee could make use of their paid leave, the employer could offer to cover the costs for tests, or both parties could agree to revert to telework as much as possible. Nevertheless, no party can be forced to do anything, Dall’Agnol added.
In companies with over 150 employees, workers have by law a say in company decisions. However, according to Dall’Agnol, most employers and staff delegates have decided against introducing a catalogue of sanctions. The main reason for this is that every situation is different and not every problem can be solved in the same way.
While it is true that in smaller businesses, an employer can take decisions on their own, Dall’Agnol thinks that it would be “very difficult” for an employer to go “completely against the grain”. In addition, there is a general principle in law that no one must abuse their rights.
Dall’Agnol stated that he was not aware of the case of the staff member at Hôpitaux Robert Schuman who was suspended for refusing to participate in the CovidCheck system. However, the lawyer reiterated that an employer can impose sanctions in the case of an “unjustified absence”. Nevertheless, Dall’Agnol raises the question whether the termination of the employment contract really is “the most appropriate sanction”, or whether an employer should not rather resort to “lighter sanctions” such as a withholding of the employee’s salary. These decisions must be taken on a case-by-case basis, Dall’Agnol added.
In general, CovidCheck at the workplace has been a frequently discussed topic over the past few weeks, according to the lawyer. Based on conversations with his own clients at Allen & Overy, Dall’Agnol stated that companies are perhaps “a little less eager” to introduce the CovidCheck system than initially expected.
