News Update Employment

16 March 2020

The coronavirus (COVID-19) is having an enormous impact on the business sector. Currently, there is a semi-lockdown situation in the Netherlands. The outbreak does not belong to the standard business risks of entrepreneurs. This raises many questions. In this News Update, we will address these questions from an employment law perspective.

What measures must employers take to protect their employees?

Under the Dutch Working Conditions Act, employers must ensure a safe and healthy working environment for their employees. This means that employers must take measures to avoid the spread of the coronavirus. Employers must follow government policies. Employers must also properly inform employees about the policy they apply and what they expect from the employees in relation to implementing that policy. Employers can use their statutory right to issue instructions.

Are employers entitled to prohibit employees from travelling to a coronavirus risk area?

The employer’s right to issue instructions is related to the performance of work. This means that an employer prohibiting a business trip to one of the risk areas may fall under the right to issue instructions. This, however, does not mean that an employee can be prohibited from travelling to a risk area in his or her own time. In those cases, employers must rely on the employee’s own responsibility. However, employers can advise employees not to travel, in line with the travel advice issued by the government.

Are employers allowed to ask their employees if they have any symptoms and whether an employee has recently been in a risk area or is going to travel to a risk area?

Employers are allowed to ask their employees whether they have health problems, but employees do not have to answer this question. If they call in sick, it is up to the company doctor to make a decision in this matter.

Employers have an interest in avoiding employees being infected with the coronavirus. As long as any processing of this data does not have an unnecessary impact on the privacy and other interests of the employees, and employers do not process more personal data than necessary, employers can ask their employees to declare whether they have recently been in risk areas (or if they have plans to go there in the near future).

How can employers respond to the issue of the care of children of working parents because of closed schools and nurseries?

As of today, 16 March 2020, schools and nurseries have closed. The government only provides care for the children of parents who both work in a vital sector. This means that other working parents may be faced with childcare problems.

Emergency leave and short-term care leave do not help here. Emergency leave may include taking care of a child, but only applies for one day. Short-term care leave – which can last for a longer period of time – only applies if partners, relatives or children are sick and does not entitle an employee to leave if there are childcare problems.

An option could be to ask the employee to take annual leave, but this cannot be imposed. In those cases, employees and employers are advised to consult.

Do sick employees have a right to wages?

Sickness is in principle a risk of the employer and the employee will therefore be entitled to continued payment of wages during sickness.

Employees who have to stay at home, but who are not sick, are in principle also entitled to continued payment of wages. These employees can be asked, if their health and work allows, to work from home.

But what if an employee decides to still go on holiday to a risk area and is sick when he or she returns? The law says that an employee is no longer entitled to wages if this employee deliberately caused his or her sickness. It will not be easy to show that this is the case. The Employer must be able to prove that the Employee intended to become ill. This will be difficult, even if an employee travels to a risk area for which a negative travel advice has been issued.

Loss of profit: what to do?

Many companies are faced with loss of profit due to the coronavirus. If an employer has at least 20% less work as a direct result of the coronavirus, a permit for a reduction of working hours can be applied for from the Dutch Ministry of Social Affairs and Employment. If the permit has been obtained, the employer can apply to the Dutch Employee Insurance Agency (UWV) for unemployment benefits for its employees for the hours not worked. The employees must meet the conditions for unemployment benefit. By now, 5,000 companies have applied for a reduction of working hours.

Attention: a reduction of working hours is not allowed in the event of: (i) a strike; (ii) a disproportionate amount of staff in relation to the normal activities; (iii) for the periods before the application for a reduction of working hours. If the application is granted, employers may reduce the working hours of the employees in question. If the application is refused, it is possible to object and appeal against this decision.

The permit is granted for a set period of 6 weeks and in total for a period of no longer than 24 weeks. The 20% work reduction is considered per legal person, and not per department or division. A reduction of working hours only applies to employees that belong to the regular staff. For standby employees with a zero-hours contract, independent contractors and temporary employees, no reduction of working hours can be applied for. It is also possible to apply for a reduction of working hours for a group of employees.

During the permit period, the employer continues to pay the wages to the employee. If the conditions are met, the UWV will pay the unemployment benefit for that employee to the employer. The question is whether the arrangement will be sufficient: employers will have to wait six weeks until the UWV pays the benefit.

The reduction of working hours scheme therefore only offers some compensation to employers: the fact is that employers have to continue to pay wages and the government only repays 75% (and 70% after two months) of the salary for the employees that are entitled to unemployment benefit (in so far as this does not exceed the maximum daily wage).

On 1 January 2020, however, the 'Unworkable Weather Scheme' also became effective. This scheme relates, among other matters, to ‘extraordinary, non-natural circumstances’. The scheme, however, implies more than that: under clause 5 of this scheme, the employer is no longer obliged to continue to pay wages if it has been given permission to reduce working hours, except on the basis of other agreements or a collective bargaining agreement. On the basis of this scheme, there does not seem to be an obligation to continue to pay wages.

Please note: On 17 March, the Reduction of Working Hours Scheme was cancelled and replaced by the temporary Emergency Bridging Measure to Preserve Employment (Noodmaatregel Overbrugging voor Werkbehoud). Please read our new Employment News Update here.