Can KLM reject someone who applies as a pilot or flight attendant if they do not want to be vaccinated against Covid-19? Or more broadly: can an employer require a new employee to be vaccinated?
Those questions were central on Thursday in summary proceedings by the Association of Dutch Airline Pilots (VNV) against KLM. The pilots’ union wants the company to remove the requirement that new pilots are vaccinated.
The VNV calls the requirement discriminatory and contrary to the right to privacy and physical integrity. The vaccination obligation is at odds with previous agreements, according to the union. The collective labor agreement states that Covid-19 vaccinations “only take place on a voluntary basis”. Only the pilots object to a vaccination obligation for new employees. The cabin crew unions have less trouble with it.
Entry Restrictions
KLM wants flight personnel to be vaccinated or to be vaccinated, so that it can schedule employees on every flight to every destination. While the pandemic seems to have peaked in many places around the world, some countries still have entry restrictions.
For example, at airports in Canada and in Trinidad and Tobago, every crew member must be vaccinated to enter the country. KLM also mentions São Paulo, Singapore and Seoul, but according to the VNV, the airline has set those destinations itself on “vaxx-only”. There would be alternatives to comply with the applicable entry restrictions, such as hotel quarantine, or tests.
“It presents KLM operational challenges when crew members are not fully deployable,” said a spokesperson. “Full deployability in the network that KLM flies has been a regular hiring requirement for years, because this way we can continue to complete the planning of our flights in the future.” The company would not have refused a pilot so far because of vaccination status.
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It is unknown how many KLM employees have been vaccinated. The company employs 3,000 pilots. About eight hundred pilots have a ‘travel restriction’: for some reason (medical or corona related; due to less experience) they cannot fly to all destinations. They report this restriction to KLM’s medical service and do not have to share it with executives.
Vaccination remains voluntary
An employer in the Netherlands may ask whether an employee has been vaccinated, but there must be a good reason for this. The employee does not have to answer. An employer may not oblige employees to be vaccinated against corona.
“In the Netherlands, vaccination is and will remain voluntary,” then State Secretary Dennis Wiersma (Social Affairs and Employment, VVD) replied in October to questions from the SGP. “The government is not moving towards a vaccination obligation. An employer may not force or require this.”
Also for KLM it is a top priority that according to the law an employer may not oblige employees to be vaccinated, according to the spokesperson. “KLM will not do that and we will continue to respect the voluntary nature of this.”
Court must weigh up conflicting fundamental rights
A spokesman for the VNV responds: “A potential obstacle to the employability of new employees cannot justify a violation of fundamental rights.”
Personal living ambiance
The court in Amsterdam must weigh up conflicting fundamental rights, say labor lawyers. On the one hand, the European Convention on Human Rights protects privacy (privacy) and the Dutch Constitution recognizes the right to physical integrity. On the other hand, it follows from the fundamental right to health that employers must provide their staff with a healthy and safe working environment.
It is not the case that those fundamental rights can never be restricted, labor lawyers from the University of Leiden recently wrote in the magazine Labor Law. An employer may ask an employee for a vaccination certificate, as long as it is done for a good reason. The lawyers call it desirable “to explicitly include in the law that employers may ask their employees proof of vaccination or a negative test plus the criteria”.
The Amsterdam court must now determine whether KLM’s argument that new employees must be vaccinated in order to be able to work at all destinations with travel restrictions is a good reason for a vaccination obligation. The court will issue a ruling in two to three weeks.