Employee and Employer Rights During Covid 19 Pandemic the Netherlands
The Covid-19 virus is spreading rapidly in the Netherlands, impacting all parts of everyday life, including the workplace. Therefore, Dutch employers are advised to take into consideration the following recommendations. Pursuant to Dutch law, an employer is responsible for the physical and psychological health and safety of the employees in the workplace and in this respect give instructions and take safety measures as reasonably can be expected from the employer.
What current restrictions are in place by the government?
Cultural and sporting activities are prohibited; large gatherings are restricted; restaurants and bars are closed; shops are likely to be open for limited hours; public transport limited, and health screenings are likely to take place on arrival.
What are the general principles an employer should or could apply?
Below we have set out the general principles which Netherlands companies and employers should and could apply. These principles will be aligned with the general principles of other countries and are permitted under Dutch law.
- Monitor and follow advice & guidance from the relevant authorities from the Dutch Government, such as washing your hands with soap regularly, coughing and sneezing on the inside of your elbow and using paper handkerchiefs
- Inform employees and direct the employees to relevant websites such as this
- Implement a (verbal) policy to have less face-to-face meetings and travel less, both professionally as privately
- Assess the risks faced by employees & visitors and implement the appropriate measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home.)
- Review the need for flexible working arrangements and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
- Review policies governing business travel, holidays, sickness, caring for dependents and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
- Review relevant insurance policies and guidance issued by their insurers
- Update contact details for staff and management
- Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19; or who report symptoms and may have CoVID-19
- Verify if the employer can apply for a statutory reduction of work
Can an employer force an employee to work from home?
Yes, if this is in response to an identified risk, and if working from home is possible and reasonable.
What if the employee refuses to come to the office?
As long as there are no restrictions issued for the Netherlands or a country where the employee has to travel, an employee is obliged to come to the office.
The employee’s refusal could potentially lead to disciplinary measures, such as stopping the salary. Per case, it needs to be determined if disciplinary measures can be taken. We will also refer to the answers to the questions below.
If an employee is sent back home, then what measures do employers have to take?
An employer must ensure that the employee is also working in a healthy and safe workplace at home. When this occurs, we recommend repeating the health and safety rules.
If the employee is quarantined, does the employer still have to pay the salary?
In principle, yes. The main rule is that no wages are due over the period during which the employee has not performed the contractually agreed work. However, the employee preserves the right to wages, if he/she has not performed the contractually agreed work due to a cause which, reasonably, should be for the account of the employer. Being quarantined is considered to be a cause that is in principle for the account of the employer. It will be exceptional that being quarantined will be for the account of the employee. If an employee is actually sick, payment during sickness applies.
If on request of the employer, the employee should stay at home due to a suspicion of being infected, does the employer still have to pay the salary?
Yes. We refer to our answer above. This also applies if the employee is not able to work from home.
What are the sick pay rules in the Netherlands?
Employees would be due up to 91% of their income benefits for the first 52 weeks of sickness.
From 53rd to 104th week, this would be reduced to 80%.
For both of these, the amount payable is capped at the maximum daily wage, which currently is €219.28 per day.
If childcare services and/or schools are closed, is it allowed for the employee to stay home? If yes, is the employee still entitled to his/her salary?
Yes. We refer to our answer to question 10. This also applies if the employee is not able to work from home.
Can an employer force the employee to take holidays on short notice?
No. The employer is not able to determine when an employee has to take holidays.
When can employers apply for the statutory reduction of working?
Employers might apply for a statutory reduction of working hours in the event of exceptional circumstances, e.g. fire, floods, an outbreak of disease, etc. It is confirmed that the CoVID-19 could qualify as such an exceptional circumstance. The purpose of the reduction of working hours regulation is to temporarily decrease the staff’s working hours.
To qualify for a statutory reduction of working hours, the employer must fulfil the following strict criteria:
The employer has been affected by exceptional circumstances that do not fall under the normal business risks.
It is expected that there will be at least 20% less work during a period of at least 2 weeks and a maximum of 24 weeks.
There must be a direct link between the exceptional circumstances and the decrease of work.
If the employer meets the above mentioned criteria, it could apply for a permit to reduce working hours to the Government authorities. The permission should be granted, the permit will be valid for 6 weeks. The permit can be extended 3 times (maximum 6 weeks per extension).
A permit will in any case not be granted if the employer’s workforce is not commensurate with the needs reasonably foreseeable for the employer, or the reduction of work is related to industrial actions such as a strike.
During the period of a statutory reduction of working hours, the employer may apply for temporary unemployment benefits for its employees who are affected by the statutory reduction of working hours. Please note in this respect that the Labour Office will only reimburse the hours the employees did not work during the period of a statutory reduction of working hours afterwards (i.e. after the period of a statutory reduction of working hours has lapsed). The employer should apply for the temporary unemployment benefits within one week after the period of a statutory reduction of working hours.
An employer can strongly recommend employees not to travel, to travel less and especially not to travel to risk areas to ensure the health and safety of his/her colleagues.
If an employee does travel privately, an employer cannot take disciplinary measures. If the employee travels privately to a risk area, the employer might be able to take disciplinary actions to protect their personnel, e.g. requesting the employee who returns from a risk area to work from home for the duration of the incubation period (2 weeks). Per case, this needs to be determined, thus taking into account the reasonableness and fairness.
Can an employer forbid his employees to travel abroad for business?
An employer can implement a policy that employees are in principle not allowed to travel abroad for business, when not strictly necessary.
Can an employer oblige employees to travel abroad (to risk areas) for business?
If an employee refuses to travel to a risk-prone area, taking disciplinary measures may not be reasonable.
If an employee refuses to travel abroad, not qualified as a risk area, an employer might be able to take disciplinary actions. Employers need to be sensitive and take into account the reasonableness and fairness.
Currently, there are many other ways of having a meeting; therefore, per case, it needs to be determined if the meeting can be held through an online meeting software.
Can an employer force the employees to cancel their holidays on short notice?
In principle, an employer cannot force the employees to cancel their holidays. Employers can recommend employees not to travel or at least, not to travel to risk areas, and if they do travel to risk areas, the employer could consider taking disciplinary actions that need to be determined per case, taking into account the reasonableness and fairness.
Can the employer ask employees whether they have recently visited a risk area and if yes, what can the employer do?
Yes, employers can ask if employees have recently visited a risk area privately or professionally. If the employee has visited a risk area, the employer can request the employee to visit the company doctor and send the employee home. Insofar as possible, the employee can continue to work from home.
Can employers take the temperature of an employee?
This depends on whether the actual temperature is in any way being recorded by the employer. If not, then taking the temperature is allowed; as the GDPR, then does not apply. The employee can then be refused to enter and should be advised to contact the company doctor. If, however, temperatures of employees are recorded; then, this is only allowed if this process is carried out by, or executed under, the authority of a medical practitioner.