Over the past few days, the Netherlands has been hit by a number of coronavirus outbreaks. The coronavirus has a direct impact on the workplace. How should employers and employees deal with the coronavirus?
CLINT I Littler has collected the most import questions and answers for you and set these out below. Please also check our special Littler Covid-19: Coronavirus Resources for Employers page here.
I. General health and safety requirements
What health and safety requirements should the employer observe?
Under Dutch law, employers are obliged to ensure their employees have a safe and healthy (work) environment. In relation to the coronavirus outbreak, this means that:
- employers should follow the publications and updates of the Dutch National Institute for Public Health and the Environment (RIVM) to prevent the spread of the coronavirus and to communicate these with their employees;
- employers should inform their employees proactively about the coronavirus in order to prevent or reduce unrest in the workplace. Please download our free Coronavirus instruction chart for employers on the measures to be taken in the workplace. We advise employers to tailor such chart to the specific risks of the employer’s organization, if necessary in consultation with the company doctor;
- managers and HR should abstain from providing their own medical opinions about the effects and spread of the coronavirus. They should correct misinformation promptly.
Can the employer impose a travel ban to coronavirus affected areas?
Yes, as the employer must take proportionate measures to protect its workforce against the coronavirus and as such can prohibit employees from travelling to coronavirus affected areas.
The decision to cancel or defer business travel will require a balancing of all relevant factors. This includes, inter alia, the necessity of the business trip, the destination, local government warnings in place, and the individual employee’s circumstances and concerns. In any case the employer and employee should comply with the travel advice published by the Dutch Ministry of Foreign Affairs. This also means that the employer can forbid the employee to travel to listed countries, even for private purposes. If the employee would violate this prohibition, the employer can impose disciplinary actions, such as an official warning, a wage freeze or even dismissal.
Vice versa, in our view, employees are allowed to refuse to travel to risk areas if the local working conditions do not comply with the regular health and safety requirements under which they usually work.
Should the employee inform the employer about his past or future travel destinations?
The employer has the right to instruct the employee to be transparent about any travels made or planned to coronavirus affected countries. In case the employer has a specific policy in place or gives an instruction that prohibits travelling to specific banned countries, the employer can sanction any violation thereof.
The obligation to provide information on (private) travel information clashes with the employee’s right to privacy. We therefore advise employers to ask their employees about their (past) travel plans orally and not to document this. As soon as the employer would document these travel plans, the employer would need to fully comply with the GDPR. In case of doubt, the employer could instruct the employee to visit the company doctor or send him home.
Can the employer send employees home?
In the event of a possible infection with the coronavirus, the employer can instruct the employee to work from home, as the employer is obliged to provide (the other) employees with a safe and healthy (work) environment. Generally, employers may wish to be more permissive of home working, particularly for those who have recently returned from overseas travel.
IV. Information about coronavirus and related symptoms
Can the employer ask his employees whether they are suffering from coronavirus related symptoms?
The GDPR does not prohibit to ask this to the extent that this is done orally and not documented. Again, in case of doubt, the employer should instruct the employee to visit the company doctor.
Can the employer inform his staff about colleagues having been diagnosed with the coronavirus?
Yes, the employer has the legal obligation to inform his employees that a colleague has been diagnosed with the coronavirus. However, the privacy of the diagnosed person should be respected as much as possible.
V. Screening and testing of employees
Can the employer screen or test its employees in case there is a direct threat of coronavirus infection?
Although it might seem a practical solution for employers to scan their employees for the coronavirus by taking their temperature, the GDPR does not allow this type of screening or testing. Data concerning health fall under the so-called special categories of personal data. As such, testing is only allowed based on specific legislation, for example for testing airline pilots on alcohol or drugs.
However, if a suspicion arises that one of his employees has been affected with the coronavirus infection, the employer should to take all reasonable measures needed to ensure a safe workplace. The employer can instruct the employee to visit the company doctor. In case the employee refuses to cooperate for privacy reasons, the employer is allowed to send the employee home.
VI. Remuneration of quarantined and diagnosed employees
Is a quarantined employee entitled to his salary?
In case the employee has been quarantined, his remuneration should be continued.
Is a diagnosed employee entitled to his salary?
If the employee turns out to be affected by the virus, he has the same protection as an ill employee and will be entitled to continued salary payment for a maximum of 104 weeks. The salary level depends on what parties have agreed on or, in the absence thereof, of the mandatory level under the Dutch Civil Code.
If schools close and the employee can therefore not come to work, is he employee then still entitled to payment of wages?
If a school indicates that it will close its doors the next day, then there may be an emergency situation. The employee is then entitled to paid leave until someone is found to take care of the children, but naturally that is only for a short period of time. If it lasts longer, then the employee will have to take vacation days or take unpaid leave.
VII. Working time reduction
Can employers cut back employees’ working hours due to lack of work?
Yes, the employer can obtain permission from the Dutch Ministry of Social Affairs to introduce a temporary working time reduction for salaried employees. The conditions for this are as follows:
- at least 20% of the work capacity is decreased during a period of at least 2 weeks as a direct result of “extraordinary circumstances” that are not part of the normal business risk of an employer. Last week the Dutch government has identified the coronavirus as such an extraordinary circumstance;
- if permission is granted, the employer could unilaterally shorten the weekly working hours of employees for an initial maximum period of six weeks. Consent of the employees is not needed. This period can be extended for additional six weeks’ periods each up to a maximum of three times;
- while the permit is in effect, employees are still entitled to their regular salary payment despite the reduced working time (i.e., continued payment for hours not worked). However, after lapse of the permit, the employer is reimbursed by the Dutch Labour Office (UWV) for hours not worked, subject to the maximum daily wage of € 219.28 gross per day (January 2020), resulting in savings of wage costs;
- the conditions required for reimbursement are that the employee who is entitled to unemployment benefits (i) lost five hours or more hours or half of the working time per week and (ii) worked at least 26 out of 36 weeks.
Can the employer dismiss employees due to the coronavirus affecting their business?
Generally, that will be difficult as the employer shall need to prove that due to economic circumstances, it is necessary that jobs will become redundant within a future period of at least 26 weeks.