Corona has a great impact on guest numbers and mandatory working methods in hotels. Working from home is usually not an option, which makes a safe workplace even more important. This new situation gives rise to many questions about the rights of employers and employees. Below, we will answer several questions the hospitality sector is confronted with.
Is an employee entitled to wages when he stays home with mild complaints?
At present, everyone in the Netherlands has to stay home if they have symptoms of a cold such as a runny nose, mild cough or sneeze. If one person in a family has serious complaints, such as symptoms of a cold and fever and/or tightness of the chest, the whole household has to stay home. If the employee is capable of doing his work but cannot leave the house as a precaution, he is entitled to wages. The employee cannot be forced to take holidays either. Where possible, the employee can be requested to do his work from home.
Is an employee entitled to wages if he is at home because there is insufficient work to do?
If there is insufficient work to do, the employee is in principle entitled to wages. Under circumstances, the employer can rely on the “Temporary emergency measure transitional regulation for preservation of employment” (NOW 1 and NOW 2 until 1 October 2020). Employers receive a subsidy in the form of compensation for wage costs amounting to a maximum of 90% of the wage bill if they have a decline in turnover of 20% minimum. On 1 October 2020 the NOW will be renewed till 1 July 2021, but it will be cut back. The NOW 3.0 will be divided into 3 periods of 3 months each. In the second period of the NOW 3.0, the turnover threshold will be raised from 20% to 30%. As a result, employers whose decline in turnover is less than 30% will no longer be eligible for the subsidy as of 1 January 2021. Under the current regulation, the subsidy amounts to a maximum of 90% of the wage bill. The amount depends on the decline in turnover. Under the NOW 3.0, this maximum will be reduced in three steps to 80%, 70%, and eventually 60% in the third period.
Can an employee refuse to appear at work?
No, the employee is allowed to interrupt his work only in the event of real danger for the duration of the danger, for example if a colleague with symptoms of a cold is in the workplace or if the employer clearly takes insufficient precautions for some other reason. The employee must then inform the employer that he is interrupting his work. Other reasons, such as fear alone, are no ground for interrupting the work.
Can an employer refuse a holiday request if an employee wants to travel to a risk area, or forbid this trip?
Many countries are still on ‘code orange’ at the moment. All non-necessary travel is advised against. In several European countries, ‘code yellow’ applies. Travel is allowed, but there are still safety risks. Mark Rutte has therefore referred to holidays abroad as ‘at people’s own risk’. This is relevant for the employment relationship. In principle, an employer cannot prohibit an employer from travelling abroad. However, in accordance with government instructions, an employer can strongly advise an employee against travelling to countries where code orange still applies. With regard to foreign holidays in general (regardless of a yellow or orange travel advice), an employer does wise to point out to the employee that the consequences of a holiday will be for his account and risk. For example, the employee may not be entitled to wages if he goes abroad and is subsequently placed in quarantine by the local authorities or in the Netherlands.
Can an employee withdraw a holiday already scheduled?
An employee cannot unilaterally change or simply withdraw a holiday that was approved by his employer. The employee will have to discuss this with his employer. It depends on the circumstances of the case whether the employer has to consent to the request. We know from case law that here the employer has to act as a ‘good employer’. The employer may of course have good grounds not to accommodate the request, for example because there is insufficient work available.
Is an employer allowed to have an employee medically tested?
At present there is no legitimate ground for employers to carry out health checks on employees themselves. If you, as an employer, suspect that an employee has symptoms, it is advisable to send the employee home and call in the company doctor. A doctor or company doctor may test the employee for corona. Employees with symptoms of a cold may be required to stay at home (even if they feel fit to work). Besides, the Dutch DPA (Dutch Data Protection Authority) has stated that the employer can demand of the employee to monitor his or her own health closely, especially if the employee is not working from home. The Dutch DPA gives the example of an employee measuring his own temperature during working hours.
Can an employee who has less to do be asked to perform other tasks temporarily, in order to relieve the burden of colleagues?
Yes, in our opinion this can be required of an employee in the given circumstances. However, the condition is that the employee concerned is reasonably able to perform the other tasks. Naturally, the employee must first get the opportunity to follow any mandatory (safety) trainings or courses. If the other tasks involve real dangers to which the employee is not normally exposed, the employee can rightly take the position that he can refuse them.
Questions?
Do you have any questions about the consequences of the coronavirus at work? Please do not hesitate to contact Ester Damen and/or Loes ter Meer.
