Covid-19 vaccination in the Luxembourg workplace

Luxembourg companies cannot oblige their employees to take a Covid-19 vaccine. It is indeed (i) not part of the mandatory measures taken by the Luxembourg government in the context of Covid-19, and (ii) it is consistent with the core principle under Luxembourg employment law according to which employers cannot compel their employees to take any vaccine and more generally speaking, are not entitled to information on the health of their employees.

Under the current legislation, employers whose employees are or may be exposed to Covid-19 according to the risk assessment are simply encouraged to provide their employees with the opportunity to get vaccinated if they are not already immune¹. Employers specifically operating in the healthcare sector whose employees are or may be exposed to Covid-19 according to the risk assessment, have to provide their employees with the opportunity to get vaccinated². Under no circumstances can these employers mandate vaccination on that basis either. 

Employers can in no event force employees to disclose their vaccination status, be it under Luxembourg employment or data protection law. Consequently, any information provided in this context would have to be obtained on a purely voluntary basis.

Keeping a record of employees’ vaccination is not allowed either. Vaccination data is a “data concerning health” which is considered a special category of personal data and has to be processed in line with the applicable regulations.

Article 9 of the GDPR prohibits any use of such personal data, unless it is carried out under specific listed circumstances. It also provides Members States with the ability to introduce additional limitations with regard notably to the processing of data concerning health. 

Accordingly, the CNDP specifically clarified in its Recommendations that private or public bodies cannot themselves collect any data concerning health related to Covid-19³, which should reasonably include data collected in connection with employee vaccination. It results from such broad scope of the CNDP ban that employers cannot rely on any legal ground to justify any processing of vaccination data. 

This is not permitted under Luxembourg employment law pursuant to which employers have a duty to give work to their employees. Not allowing access to the workplace could be a breach of this obligation which may be fulfilled by offering the opportunity for the employee to work remotely – teleworking must be agreed between the employer and employee.

Furthermore, non-vaccinated employees could bring claims for discrimination on the basis of health or possibly religious belief shall they be treated differently from vaccinated employees by not being given access to the workplace. 

To encourage their employees to get vaccinated, employers can set up a “vaccination campaign” to inform and encourage employees to get a vaccine as soon as this is made available to them. 

We all know that Covid-19 related legislation evolves at a fast pace and should be monitored closely. At the level of the European Union, the European Commission is discussing the possibility of introducing a vaccination passport/certificate within the Schengen area. Whether or not such passport will effectively be implemented and have an impact on vaccination in the workplace, is currently unknown.