29-06-2020
The coronavirus COVID-19 is preoccupying many if not all of us at present. Based on the most frequently asked questions, the following is a discussion of the consequences of COVID-19 for your workplace. In addition, we would refer you to the information provided by the central government at the Central Government and by the Dutch National Institute for Public Health and Environmental Protection, RIVM. The government’s measures and instructions are subject to frequent change and may affect what employers can and must do.
1. Which measures (proactive or otherwise) are expected of an employer?
Employers have a statutory duty of care in providing their employees with a safe and healthy working environment and must, for example, ensure that their employees do not come into contact with infectious employees. Employers must therefore inform their employees of the dangers of COVID-19 in the workplace and the best way of preventing infection, such as the taking of appropriate hygiene measures and avoiding physical contact such as shaking hands. Employers must also take concrete precautionary measures.
The government has called on people across the Netherlands to work from home as much as possible.This measure will remain in force for the time being. Where possible, employers must enable their employees to work from home. Should work take place at the office despite this, employers are expected to then take measures to reduce the chance of infection to a minimum. For example, adequate hygiene measures must be taken in the office and employees must be able to work at an appropriate distance from each other. Everyone in the Netherlands must keep distance from others (at least 1.5 meters), including in the workplace.
Since 1 July, larger gatherings are permitted again under strict conditions. Gatherings indoors are permitted as long as everybody keeps 1.5 metres distance and has a fixed seat. If visitors receive a health check and have made reservations, the number of persons permitted to gather is unlimited. The rules of fixed seats and 1.5 metre distance apply also to meetings on the work floor, as far as the performance of the work so allows.
2. Can an employer force its employees to work from home?
As mentioned above, citizens must work from home as much as possible. It stands to reason that employers would act in line with this and put employees in a position to do so wherever possible. In our opinion employees should comply with this.
Employees who demonstrate cold or flu symptoms (a runny nose and/or sore throat and/or cough, and potentially also a fever) may not come to their workplace and must work from home. Furthermore, we advise employers to let employees with a pre-existing condition work from home as much as possible.
3. Are employees who stay at home due to mild symptoms entitled to wages?
At present, everyone in the Netherlands with cold-like symptoms such as a runny nose, a light cough, or sneezing must remain at home. In addition, if someone in the family has severe symptoms such as cold-like symptoms and a fever and/or shortness of breath, the entire household should stay at home. When the employee is capable of performing his/her work, but may not leave home as a precaution, he/she remains entitled to wages. In addition, employers cannot force employees to take up holidays. Where possible, the employee may be asked to work from home.
4. Is the employee entitled to wages if he/she remains at home due to a lack of available work?
If there is insufficient work, the employee is in principle entitled to wages. Under certain circumstances, the employer may appeal to the Temporary emergency measure transitional regulation for preservation of employment (NOW). See also point 6 below.
5. Does the employee also keep his/her rights to benefits related to the work, such as a surcharge for working in shifts or an irregularity allowance?
In principle, the employee is still entitled to the wages he could have earned if he had worked. This also includes a work-related allowance. However, these allowances are intended to compensate for the nature of the work (for example, irregular working hours). If there is no need to work at all, the question is whether - in view of the financial burdens that the employer must already bear - it is reasonable that the employee continues to receive it. We recommend that you discuss this with the staff or a representative of the staff, such as the works council or the trade union. However, in light of the NOW it could be wise to maintain a steady wage bill. See also point 6 below.
6. Can the employer apply for a reduction of working hours?
No, the Reduction of working hours regulation (WTV) for employers was withdrawn with immediate effect on 17 March 2020. Therefore, the reduction of working hours may no longer be applied for. The Temporary emergency measure transitional regulation for preservation of employment (NOW) has replaced the WTV. Under the new measure, employers receive a subsidy for the wage costs of up to 90% of the wage bill. In the event of a loss of turnover of less than 100%, the compensation is applied on a pro rata basis. For example: in the event of a 50% loss of turnover, the subsidy amounts to 45% of the wage costs (= 50% of 90%). The government has announced that the NOW has been extended to 1 October 2020. Read more about the conditions of the scheme here.
7. Can an employee refuse to come to work?
No, an employee may only interrupt his/her work for the duration that a real danger exists, for example if a colleague with cold or flu symptoms is present in the workplace or if the employer has clearly failed to take adequate precautionary measures for some other reason. The employee must then inform the employer of his/her work interruption. Other reasons such as fear are not considered valid for the interruption of work.
8. Can an employer refuse a holiday application if an employee wishes to travel to a risk area, and/or forbid such a trip?
At the moment, the colour ‘code ‘orange’ still applies to many countries. All non-necessary travels are discouraged. On the other hand, travel advice has been relaxed since 15 June. The colour code yellow now applies to various European countries. Travelling is allowed, but safety risks remain. According to Prime Minister Rutte, people who go on holiday abroad this summer will therefore do so ‘at their own risk’. This bears relevance to employment relations as well. In principle, an employer cannot forbid employees to travel abroad. We do however advise employers - in accordance with the government’s instructions - to dissuade employees strongly from travelling to ‘code orange’ countries.
Regarding holidays abroad in general, employers will do wise to point out to their employees that the consequences of such holidays may be for their own account and risk. For example, employees could lose their entitlement to wages if they go abroad and are subsequently placed in quarantine by the local authorities abroad or in the Netherlands. In addition, we advise that business trips are limited, to the greatest possible extent. The government advises business travellers to think hard whether business trips are strictly really necessary at the moment.
9. Can an employee cancel a planned vacation?
An employee cannot cancel approved holidays unilateral. The employee will have to discuss this with the employer. It depends on the circumstances of the case whether the employer must agree to the request. We know from case law that in this case the employer must present itself as a "good employer". Obviously, there may be good reasons from the employer's side for not honouring the request, for example because insufficient work is available.
10. Are you entitled to oblige employees to be medically tested?
At present, there are no legitimate grounds for employers to impose health checks on employees. If an employer suspects that an employee is experiencing symptoms, it is advisable to send the employee home and to contact the company doctor. A (company) doctor can have the employee tested for COVID-19. Employees who have cold or flu symptoms may be obliged to remain at home (even when they feel capable of working). Furthermore, according to the Dutch DPA the employer may ask the employees to check him/herself regularly. Especially when the employee is not working from home. For example, according to the Dutch DPA, an employee could check his/her temperature at work.
11. Is an employee entitled to paid leave if his/her child is banned from school or day care because it has cold symptoms or fever?
Day cares and schools have already reopened, but parents are still often faced with the problem of children having to stay at home because they have mild symptoms. If a child has to stay at home unexpectedly, the employee may use emergency leave as a temporary emergency measure. During emergency leave, the employee is entitled to his or her full wages.
When the child is sick, the employee may claim consecutive short-term care leave to attend to the child. During short-term care leave, the employee is entitled to at least 70% of his/her wages. If these forms of leave have been exhausted, an employee may take up holidays, apart from which, as a rule, there is no further entitlement to paid leave. Further provisions may have been made in the collective bargaining agreement (CAO) or terms and conditions of employment. Finally, if the situation allows, it may be an option to let the employee work from home.
12. Can I ask an employee who has less to do than usual to temporarily perform other tasks in order to relieve colleagues?
Yes, in our opinion, this may reasonably be expected of employees in the given circumstances, if the employee in question is capable of performing those other tasks. Of course, the employee must first be given the opportunity to follow any obligatory training (e.g. in relation to safety) or courses. If the other tasks involve real danger which the employee does not normally have to face, under certain circumstances the employee may refuse.
Do you have any further questions about the consequences of COVID-19 in the workplace? Please feel free to contact Eylard van Fenema and/or Marieke Opdam.
