Employers are obliged to take measures to prevent the spreading of the coronavirus. Recently, the Court of Midden-Nederland rendered a judgment on the question whether employers can indeed force employees to wear a mask.
Preventing Contamination with Coronavirus
The employer is responsible for the health and safety of his employees. This means that the employer has to implement the necessary measures or facilities in order to prevent contamination with the coronavirus. This obligation followed already from the employer's general duty of care, and has recently also been included in Article 3.2a of the Working Conditions Decree. Failure to comply with this obligation may result in a penalty imposed by the Inspectorate of the Ministry of Social Affairs and Employment (“SZW”). If an employer seriously fails to take the necessary measures to prevent or limit the chance of contamination, the Inspectorate SZW may even halt business operations. This power was recently included in the Working Conditions Act (Section 28 subsection 7). It may also happen that a (vulnerable) employee refuses to work if the employer has not taken sufficient measures. As appears from a recent ruling from the Court of Limburg, in such cases the employer must in principle continue paying the employee's wages.
But what are the legal consequences if the employer does take sufficient measures, but an employee refuses to comply with them? Such a refusal may make it impossible to guarantee the safety of his colleagues. This situation came up in a recent ruling given by the Court of Midden-Nederland about an employee who had refused to comply with the duty to wear a mask.
Facts
The employer runs a pastry shop/chocolate shop/ice-cream parlour with several locations. The employee drives around between the locations to deliver products with a van. The employer has introduced the duty to wear a mask within the company. For the employee, this means that he has to wear a mask whenever he is inside the business premises. He does not have to wear a mask in the van. The employee refused to follow this instruction of the employer; he refused to wear a mask. In response to this, the employer suspended the employee from duties and suspended payment of his wages. The employee claimed continued payment of wages in preliminary relief proceedings.
Opinion of the Court
The Court held that the employer could reasonably instruct the employee to wear a mask. Therefore, the employee is in principle obliged to follow this instruction. This could be different if the employer's right to give instructions would infringe a fundamental right of the employee, such as the right to respect for individual privacy. There is no such infringement in this case. The obligation to wear a mask serves two legitimate purposes: i) the care for a safe and healthy work environment, and ii) protection of the corporate interest by preventing employees from dropping out.
Since the employee has refused to wear a mask, and it appeared at the hearing that the employee is not unconditionally prepared to follow this instruction after all, the employer has the power to suspend payment of his wages.
Conclusion
This ruling makes clear that in principle, the duty to wear a mask falls within the statutory right of employers to issue instructions, provided that such instructions serve a sufficiently legitimate purpose. Of course, it may happen that certain employees are incapable of wearing a mask due to medical impairments. In that situation, it is up to the employer to find a suitable solution together with the employee, possibly with the help of the company doctor.
Contact Marieke Opdam or Marjolein Bouman if you have any questions.
