- 04 Jun 2020
1. Can we require employees to inform us about their health and ask them not to come into work?
Given the exceptional situation in which we find ourselves, employees may be asked to provide information about their health, insofar as this is crucial for the health and safety in the workplace. Especially if this is to ensure the health and safety of others within the organization. However, this does constitute processing of “sensitive personal data", data which must therefore be treated with the utmost confidentiality. Under the obligation of employers to ensure a healthy and safe working environment, an employer may require an employee not to appear at work if the employee appears to have symptoms of the coronavirus. The employee is in that situation of course entitled to wages.
An employer's obligation to ensure a safe and healthy working environment may conflict with Dutch privacy law, which imposes stricter restrictions than European privacy rules. However, the situation surrounding the coronavirus is so dire and exceptional that the employer's obligation to ensure a safe and healthy working environment in our opinion should prevail.
2. Should we encourage staff not to use public transport?
The nature of the work must be considered. If the employee performs work that he/she can also perform (temporarily) from/at home, the government has issued the advice that in such circumstances the employee should rather work from home and not travel by public transport.
In cases where it is not possible to work from home and the employee cannot travel to work in any other way, employers may consider temporarily applying the policy that the employee travels by public transport outside of peak hours, when it is significantly less crowded, which reduces the chance of contamination.
3. Do we have to pay employees who are off sick with diagnosed Coronavirus?
Yes. An employee who drops out because of the coronavirus must be treated as an employee on sick leave. He/she retains the right to the agreed salary in case of illness as long as the illness continues.
4. Do we have to pay employees who are not actually sick but are quarantined according to medical/government advice?
If an employee is not ill, but has been quarantined, for example because a family member has been diagnosed with the coronavirus, an assessment must be made whether the employee can perform work from home. If the work is carried out from home, the employee is entitled to wages.
However, even if working from home is not possible, non-working will probably be at the expense and risk of the employer. After all, the purpose of quarantine is to prevent further spread of the virus. This measure therefore serves, among other things, to protect the interests of the employer, namely, to prevent contamination of colleagues. In addition, the employee may still drop out because of contamination and/or may report sick report after the notification that the wages will not be paid. For practical reasons, it therefore seems advisable to continue paying wages for the time being.
5. Is an employee entitled to salary if he refuses to come into work?
It is conceivable that an employee takes the initiative to decide that he/she does not want to come in to work, even without being sick: the employee will do so for fear of the coronavirus and therefore as a precautionary measure. However, if there is no immediate (tangible) reason, an employee cannot autonomously decide to stay at home and is therefore not entitled to wages if he/she does.
However, special circumstances may alter that. For example, an employee who is pregnant or who, due to another medical indication, belongs to a vulnerable group. After all, for such individuals there may possibly be acute danger.
In other words, this will always have to be assessed on a case-by-case basis.
6. Do we have to pay employees if we ask them not to attend work?
7. Do we have to pay employees if we decide to (temporarily) close the workplace?
The statutory principle is that in case no work is performed, the employee is still entitled to receive salary. However, no wages have to be paid if the reason why the employee is not working is within the control of the employee. If an employer decides to temporarily close the company because of the corona virus, this is a decision that falls within the employer’s control/risk sphere. The salary will therefore have to be paid. In this respect we refer to question 8 below.
8. Can we lay off employees or put them on short-time working if demand decreases due to further developments?
On March 17, 2020, the government announced support measures for companies facing financial difficulties due to the corona outbreak. These measures concern support for the continued payment of labour costs, financial support for self-employed workers, deferral of tax payments and an emergency service point where small and medium-sized enterprises can receive EUR 4,000.
The most important measure under employment law is the withdrawal of the short- time working scheme (Wtv). This scheme is replaced by the "Noodfonds Overbrugging Werkgelegenheid” (‘Emergency Fund Employment Bridge’) (‘NOW’). Under the NOW, employers may apply for a contribution towards wages of up to 90% of the total wage bill. The allowance will apply for 3 months.
Several conditions apply for employers in order to qualify for the NOW, among which the requirement of having a drop in turnover of at least 20% over a three month period. Employers are also obliged to try to keep the wage bill the same as much as possible in the period of 1 March until 1 June.
For all information regarding a NOW application, see our article on government measures.
9. What steps do we have to take to meet health and safety duties in workplace?
Employers have an obligation to ensure safe working conditions and a safe working environment. Exactly what is expected of an employer depends on the circumstances of the case, such as the nature of the work being performed. Employees are required to follow the employer's safety instructions. If they fail to do so, disciplinary action may be taken in certain cases, such as a formal warning or, if appropriate, a dismissal.
With a view to corona, employers should keep a close eye on developments and follow the advice of the government and RIVM to determine what measures should be taken within the company. Possible measures may be:
- Limit business trips. Keep a keen eye out for travel advice from the Ministry of Foreign Affairs and adjust the policy accordingly. At the moment, the Ministry of Foreign Affairs advises to only travel abroad if this is strictly necessary. This is related to the impact that foreign government measures can have on Dutch travellers. In addition, there is currently an entry ban for travellers from outside the EU, they are temporarily no longer admitted to the Schengen zone. In this respect we refer to questions 13 & 14.
- Provide up-to-date information. Share government measures and their consequences with employees. However, do not create unnecessary panic.
- Provide sufficient hygiene products: tissues, hand soap and any disinfectant hand gel.
- Encourage employees to wash their hands on arrival and after coughing or sneezing. Encourage employees to sneeze or cough in their elbow.
- Instruct employees not to shake hands.
- Where reasonably possible, instruct employees to work from home.
- Ensure that surfaces subject to frequent touch are thoroughly cleaned/disinfected.
- Send any employees displaying symptoms of corona contagion home.
- Send any employees who ought to be quarantined home.
- Ensure that any employees returning from risk areas with health issues are only allowed back on the work floor after they have been tested and cleared.
- Assess whether certain groups of employees have a higher risk of infection and take additional measures for them if necessary.
Since the knowledge and science regarding the coronavirus is increasing on a daily basis, and because new measures may be introduced, it is important to continue to closely monitor current developments and to respond to them where necessary. It is important to inform your employees on an ongoing basis on the measures and policies in place due to the coronavirus.
10. What advice should we give suppliers/contractors?
If suppliers and/or other third parties visit the employer, they must be informed about the safety measures that apply to them. Encourage them to adhere to these measures. Do not allow access to third parties who are infected or should be quarantined. Consider converting planned appointments to a telephone appointment or video conference, where possible.
11. Do employees have a right to be notified if a colleague has contracted Coronavirus?
This concerns an employee’s medical data. The law protects workers against the sharing of this type of personal data. On the other hand, an employer has a duty to ensure the safety of its employees. It is therefore recommended to issue any such communication in consultation with the infected employee.
If this is not possible, it is advisable, without mentioning names, to disclose this information to those members of staff for whom this information is of interest, so that they can be alert to possible symptoms and take measures to prevent further spread.
12. Can we require staff to undergo tests for Coronavirus?
No. Employers cannot force employees to undergo a test. An employee can only be encouraged to undergo a test in case of complaints or when he or she has returned from a risk area. It is also not allowed to measure the temperature of employees to assess whether they have a fever or not.
13. Can we require employees to travel to places other than severely-affected areas for work?
On the website of the Ministry of Foreign Affairs travel abroad is currently discouraged, unless it is absolutely necessary. This is due to the fact that the country of the destination in question will also have taken the measure that travellers from the Netherlands are no longer allowed to enter the country due to the virus.
The entire world is currently under a code orange restriction. We therefore advise to postpone travel until the situation regarding the destination has been resolved.
In addition, we would like to point out that an entry ban applies for the entire EU (Schengen countries) for those travellers from outside the EU.
14. Can we stop employees’ (personal) travel to affected areas?
Strictly speaking, Dutch legislation does not allow employers to impose restrictions on how employees spend their free time. An employer cannot therefore prohibit an employee from going to a destination if it is known in advance that this destination has, for example, been coded orange.
At the moment, the Ministry of Foreign Affairs has announced that the code orange applies worldwide, and that travel abroad is not recommended, unless this is strictly necessary. Holiday trips do not fall under necessary trips and are therefore not recommended. Freight transport and other professional transport is explicitly considered as "necessary traffic". The travel advice therefore does not apply to the transport sector and freight transport.
We advise that employees who intend to travel abroad be advised of these strict rules of the Ministry, with all the associated risks, such as the impossibility to return to the Netherlands, due to exit restrictions that apply in other countries.
However, different scenarios are conceivable, with different consequences:
- If an employee announces that he will travel to a country known to have been given a code orange or red, our advice is to inform this employee in writing that any consequences of that travel will be entirely at the employee's expense and risk. For example, if the employee is quarantined at the end of his vacation as a result of the coronavirus and therefore returns one or a few weeks later, or is quarantined upon return to the Netherlands, he loses his entitlement to salary for the period in which no activities are performed.
- The situation is different, however, in case the employee travels to such a destination and actually falls ill. Under Dutch law and published case law, an employee only loses his entitlement to wages in the event of illness if it is established that the illness was caused intentionally. And this will in the present circumstances not easily be the case, given the extremely strict assessment of the concept of intent. In that case, an employer could, at best, check the employment contract, the personnel manual and/or the collective labour agreement to assess whether there is room to pay the employee reduced sick pay. For example, the legal minimum of 70% (capped at the maximum day wage) and/or applying a waiting period of two days, during which the employee is not entitled to wages.
15. Is an employee entitled to continued payment of wages if he/she is unable to come into work as a result of schools/day-care facilities closing its doors following governmental instruction?
Employees able to work from home are entitled to do so whilst remaining entitled to salary payment.
For employees that cannot work from home a different regime applies. Under normal circumstances an employee would be entitled to emergency leave for one or two days at most with full pay, during which alternative solutions for childcare is to be arranged. Possibly followed by alternative arrangements such as taking (unpaid) leave in case no other options are available.
From a legal perspective starting point is that if no other alternative options are available, the employee should return to work and failing to do so would leave the employee not entitled to salary payment.
Due to the governmental measures currently in place it may well be difficult (if not impossible) for employees to find alternative options for childcare. This could under the current exceptional corona situation, possibly lead to a situation where an employer should continue the salary payment on the basis of acting as befits a good employer, applying the recently announced NOW-measures (see question 8).
The government has published a list of crucial professions and vital processes. These sectors and processes must keep the community going during the coronavirus outbreak. A special emergency (child) care facility has been set up for the people working in this sector.
In principle, if one parent in a family performs a crucial profession, the request is to arrange for childcare privately if possible. If this is not possible, a request can be made to the school and/or child care. It is not a strict requirement that both parents perform a crucial profession. The guiding principle is that people with crucial professions can continue to work.
16. Can we stop employees attending gatherings?
Considering the measures announced by the government, currently valid until 1 June 2020, the Dutch are currently advised against attending gatherings, with the exception of receiving company at home with a maximum of three visitors at a time. Translated to the workplace, this means that the employer may pass this urgent advice on to its personnel. However, it cannot constitute more than urgent advice: the employer cannot impose prohibitions, especially since this concerns the employee's private time.
17. Should we involve the works council in the application for support measures under the Emergency Fund Employment Bridge (NOW)?
One of the conditions for employers being eligible for NOW is that the employer must inform the works council or employee representative body. If the employer has no works council or employee representative body, the employer is obliged to inform the employees directly if the employer is planning to apply for NOW.
The works council does not have a right of advice or consent.
18. What are the consequences of the corona virus for the unemployment benefits premiums we pay?
Since the introduction of the Balanced Labour Market Act (Wet Arbeidsmarkt in Balans, Wab), the written requirement in the context of the unemployment benefits contribution differentiation has been introduced. Employers may only pay the low unemployment benefits premiums for employees with a written employment contract for an indefinite period with a fixed number of hours. The deadline set by the Ministry of Social Affairs and Employment to meet the written requirement was set at 1 April 2020.
On 18 March 2020, the Ministry of Social Affairs and Employment announced that, in view of the coronavirus, employers will have until 1 July 2020 to comply with the above requirement.
As a result, employers may pay the low unemployment benefits premium up to that time, even if the employment contract for an indefinite period (not being an on-call contract) has not yet been laid down in writing. In such situations, employers can fill out the indication section "written employment contract" with "yes" in the payroll tax return for those periods. This leniency only applies to employment contracts of employees who entered employment before 1 January 2020; the leniency does not apply to other employment contracts.
The Ministry of Social Affairs and Employment has also confirmed that in addition to a written addendum, a digital signature is sufficient, or approval by e-mail or in an HR system.
More than 30% overtime
If an employee with a fixed number of hours less than 35 hours per week works more than 30% overtime during a calendar year, this may result in a revision of the low unemployment benefits premium. This revision means that employers have to pay the high unemployment benefits premium retroactively instead of the low unemployment benefits premium.
The Ministry of Social Affairs and Employment announced on March 18, 2020 that this will lead to unintended effects in sectors where the coronavirus requires a lot of extra overtime, for example in healthcare. It has therefore been decided to adjust this scheme. The Ministry will elaborate and publish the relevant amendments as soon as possible.