On 25 September 2021, the Dutch government relaxed its advice to work from home. Until that date, employees were advised to come to the office only if necessary. As of 25 September, the following advice applies: ‘work from home if possible and at the office if necessary’.
This has inspired many employers to combine working at the office with working from home. In view of the positive experiences gained with working from home, it is expected that such a hybrid form of working will remain common practice, even after the last measures in the fight against the coronavirus will have been lifted.
Combination of working from home and in the office
On 24 September, State Secretary of Social Affairs and Employment Wiersma explained the relaxation of the advice to work from home in a letter to the Lower House of Parliament. Employers are expected to take their responsibility and make arrangements with employees for a suitable division between working on site and from home. Of course, this must be done with due regard for the risks of spreading the coronavirus, which are unfortunately still around. Employees who have symptoms of a cold are still required to stay home and to get tested.
Now that working fully from home is no longer standard, in principle employees may be required to come back to work (partly) in the office again. During the past 18 months people have been working from home because of an exceptional situation, which means that – in principle - there can be no question of a ‘right to work from home’.
Home working allowance
In the past period, many employers have introduced the payment of a home working allowance to their employees. After all, working from home involves additional costs. A bill is currently under discussion that is intended to make it possible for employers to pay their employees a tax-free allowance of EUR 2 per work from home day. To achieve this, a dedicated exemption in the work-related costs regime will be introduced. If the bill is adopted, employers will be able to use this exemption starting from January 2022.
Vulnerable employees
Naturally, employees who have vulnerable health may prefer to keep working from home for some time. State Secretary Wiersma calls on employers to give their employees space to find a new balance, and to make arrangements with them. It should be emphasized here that employers have a statutory duty to create a safe working environment.
If working on site implies a real risk to the health of a vulnerable employee, it may be an option not to require the employee concerned to go back to working on site yet. However, depending on the situation at the employer’s, it should often be possible to create a safe environment in the office by taking appropriate measures. Since each situation is unique, employers will have to assess on a case by case basis what an appropriate solution is. For example, in May 2021 the Court of Amsterdam held that the employer had to respond properly to the fears of an employee who had a heart condition and was in the process of reintegration.
Work from home policy and employee participation
A (new) work from home policy must be presented to the Works Council for advice if its introduction constitutes a significant change in the organization of the undertaking. We consider this quite imaginable if a new, hybrid form of working will be implemented on a structural basis. If and to the extent that the new policy leads to the introduction or change of a major technological facility, the Works Council’s advice must (also) be requested. Besides, the policy may contain components that require the consent of the Works Council. Examples are (changes to) the rules relating to working hours, working conditions and the protection of personal data.
Conclusion
The ‘relaxed advice to work from home’ will apply in any case until 1 November of this year. However, within the current framework employers and employees may already start using hybrid forms of working and building policies in this respect. If you want to give shape to such policies, we will be happy to advise you.
Any questions, feel free to contact with Eylard van Fenema and/or Marieke Opdam.
