Deloitte Employment Law News Flash - COVID-19 & the workplace Bookmark has been added
Deloitte Employment Law News Flash - COVID-19 & the workplace
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.
19 March 2020
1. Formulate a policy
First of all, it is important to formulate a (preferably written) policy in respect of many of the topics also addressed below, e.g. hygiene, travelling, working from home, etc. In this respect, it is recommended to consider taking specific measures for employees in risk groups, etc.
It is important to note that generally, if a Works Council is present within the company, it should also be involved in this step, since it has a co-determination right in respect of any intended decision to adopt, amend or withdraw regulations in the field of working conditions and/or an absenteeism or reintegration policy. It is therefore important to timely involve the Works Council when considering measures and the implementation of a policy. Of course, the company may in that case, given the pressing nature of the situation, also expect a swift response from its Works Council.
2. Inform the employees
Employers should subsequently provide sufficient and reliable (e.g. from the competent authorities*) information regarding the corona virus and the policy to all employees, keeping them informed as much as possible. This information should consist of (among others) the symptoms of the virus, the hygiene measures to prevent infection, the corona affected destinations, any and all contents of the policy, etc. Employers are obliged to do this on the basis of their statutory task to offer employees a safe and healthy workplace.
*Gemeentelijke Gezondheidsdienst (GGD)
*Rijksinstituut voor Volksgezondheid en Milieu (RIVM)
3. Request the employees to report (business) trips
Employers can and should request their employees to report when they intend to travel or have travelled the past weeks to corona affected destinations. This should be done in respect of both business and private trips. Employees are obliged to act as a good employee and provide this information, also in respect of private trips. If, however, the employee fails to mention a specific trip, this cannot have any consequences under their employment relationship, unless the policy on reporting of trips specifically mentions potential sanctions. It is thus recommended to include such sanctions (for example a wage sanction) in the policy to be drafted (if desired). It is not possible under Dutch law to forbid employees to travel to infected corona affected destinations privately.
4. Limit business trips
Employers must take strict action to protect their employees, by cancelling all planned business trips, where possible, and of course specifically those to corona affected destinations (high risk areas). Furthermore, in respect of business trips that are not cancelled, employers must respect the wishes of the employee, i.e. if an employee chooses to travel (or not to travel), this choice should have no consequences under their employment relationship. Employers should, however, as set out under 2, ensure that the employee makes this choice while being fully aware of the risks and consequences.
5. Absence / Working from home / Quarantine
Employers may decide to send employees home to prevent infections on the grounds of the principle of “good employment practice” and safety and health considerations. If the employee is able to perform his/her duties from home, he or she is (logically) entitled to renumeration. Please note that the employer in this case also has a duty to comply with the requirements set out in the Dutch Health and Safety Act, inter alia prescribing that an adequate home office for the employees is required.
Below we provide some examples (which can be used as guidelines) of how an employer can comply with this obligation of providing the employee with an adequate home office (please note, this is not an exhaustive list):
- Make manuals available for access to the digital work environment from various devices;
- Advise employees about the hygiene measures, also for their home office (e.g. wash hands, sneeze into the elbow etc.);
- Advise employees to try to raise their chair a little (or use an adjustable office chair) so that the forearms are on the table, then the employees don’t have to raise their shoulders too much;
- Advice employees to take several (short) breaks so that employees do not remain in the same position all day.
If the nature of the work does not allow working from home and the employee is not absent due to sickness, Dutch law prescribes that an employee is in principle entitled to wages for the period in which he or she does not work, unless the reason for the employee’s absence should reasonably be attributed to the employee himself.
If the employee is working from home, because he has mild Corona-symptoms (e.g. a running nose, coughing), it should be assessed whether the cause of the symptoms has been incurred in a business- (e.g. business trip) or private environment (e.g. holiday). This will be a difficult assessment to make. Unless the symptoms are without a doubt incurred in the private environment (which shall rarely be the case), they cannot be attributed to the employee and therefore remuneration must be continued. Moreover, even if the symptoms are incurred in the private environment, the employee may nonetheless remain entitled to remuneration, since the outbreak of Corona may also be qualified as an unforeseen circumstance which cannot (at all) be reasonably be attributed to the employee.
If an employee cannot work because he/she cannot travel/return from holiday or since he/she is placed in quarantine after travelling to an infected country privately, this is a circumstance that might be attributable to him-/herself, so he/she might not be entitled to payment of remuneration, unless he/she would be working remotely, would be ill or would take additional holidays. However, as indicated before, this is uncertain, since the outbreak of Corona may also be considered an unforeseen circumstance which cannot be attributed to the employee (resulting in the employee nonetheless remaining entitled to remuneration).
If the employee has no symptoms of Corona, but nonetheless is asked to stay at home and thus cannot work, this decision will in principle be attributed to the employer, which means that the employee will remain entitled to remuneration.
6. Employee refuses to work
If an employee refuses to work in order to avoid contamination at the workplace, employers may be obliged to cooperate in the employee working remotely from home, where this can be reasonably be attributed to the employee. If this is not the case (e.g. because the work cannot be done remotely) and the employee would nonetheless not show up for work, this would qualify as a reason for absence attributable to the employee. The employee will under these circumstances thus in principle not be entitled to salary during his/her absence (unless the rules set by the Dutch government would by that time actually prohibit the employee to go to work). Given the exceptional nature of the current situation, it, however, seems unlikely that any disciplinary measures taken subsequently (e.g. a formal warning or even a dismissal on grounds of work refusal) will eventually hold up in court.
7. Absence due to care for others
The Work and Care Act gives employees the right to paid emergency leave in the event of unforeseen circumstances that require an immediate interruption of work. This could be used for example when a daycare or school has closed due to the corona virus and the employee immediately needs to arrange for care for his/her child(-ren). Since emergency leave is only intended for immediate situations, it is generally considered to end after the first day of the unforeseen circumstances.
If an employee, after that initial day of emergency leave, requires additional time off, e.g. because of a sick family member or because his/her children cannot go to school and/or daycare, he/she may be entitled to short-term care leave. This, however, only applies in the event of necessary (but not immediate) care of illness (e.g. due to Corona) of a partner or child. It thus in principle does not apply in case of necessary care for healthy children, due to school and/or daycare closure. Short-term care leave covers a maximum of twice the weekly working hours per year. For example, an employee has an employment of 36 hours, 72 hours of short-term leave can be taken per year. In principle, short-term leave entitles the employee to 70% of the wage (subject to exceptions agreed upon in the employment contract and/or Collective Labor Agreement).
Should an employee require additional days of leave, on top of any statutory emergency- and, if applicable, short-term care leave (e.g. to care for healthy children, as mentioned above), he or she is expected to take holidays or unpaid leave in respect of those days.
8. Absence due to illness
Based on Dutch law, the employee is during the first 104 weeks of sickness entitled to a minimum of 70% of the statutory maximum daily wage, which should during the first 52 weeks minimally equal the statutory minimum wage. Often, however, the employment agreement or an applicable CLA prescribes an entitlement to a higher amount, at least during a part of this period. Employees that have caught the corona virus will be entitled to the same.
Furthermore, employers are advised to report the illness to their company doctor or occupational health and safety service as soon as possible. This also applies for employees who reported sick because of the corona virus. With regard hereto, the company doctor or occupational health and safety service generally advise against a physical (sickness verification) visit of the sick employee to them in person, due to the risk of spreading the corona virus. Therefore, consultation by phone in this case is recommended.
Please note, that it is not possible for an employer to monitor the health of their employees (e.g. temp them). This can in the Netherlands – as well as any other medical examination of employees – only be done by the company doctor or occupational health and safety service on behalf of the employer. If employers are unsure about the health of their employees and about the contents of a policy to be drawn up in this regard, it is recommended to consult the occupational health and safety service.
9. Change of tasks and obligations
In case the employer is confronted with a change in its business needs due to the Corona virus, a solution could be to change the tasks of an employee (temporarily). Sometimes the employment agreement (or an applicable CLA) already includes an arrangement either specifically allowing a change in the employee’s tasks and duties (within the limits of reasonableness and fairness) or more generally – under certain conditions – enabling the employer to amend the employment terms and conditions unilaterally. Although in the latter case, severe restrictions generally apply to a unilateral change of position based on such a clause, these may in respect of Corona be loosened somewhat, as it concerns a (temporary) change under unforeseen and uncontrollable circumstances. Even without the employment agreement including any specific arrangements, a unilateral change of tasks and obligations might be possible based on the obligation of parties to act as a ‘good employer’ and ‘good employee’, since under unforeseen and uncontrollable circumstances more flexibility may be expected from the employee to cooperate in and accept changes.
10. Temporary emergency bridging measure aimed at job retention (NOW)
On 17 March last, the Dutch government announced new measures, including the temporary emergency bridging measure aimed at job retention (in Dutch: tijdelijke Noodmaatregel Overbrugging voor Werkbehoud; NOW). As a consequence, no new applications can be filed under the existing Dutch regulations on a reduction of working hours. Applications under those regulations, that were filed previously, but have not yet been granted, will be dealt with under the new measure. The employers concerned will receive a notification and will be asked to provide additional information. Any extensions of applications that were already granted under the existing regulations (in relation to COVID-19) will also be dealt with under the new NOW.
At this moment, it is unknown when the NOW will enter into force, but the government did already share the broad framework of the measure. Employers facing a decline in revenue of at least 20%, are eligible to receive compensation for maximally 90% of their wage bill, related to their actual loss of revenue, during a period of 3 months (with a potential extension for another 3 months). This brings a correlation between the actual loss of revenue and the amount to be compensated. Government agency UWV will provide an advance payment equal to 80% of the expected compensation, based on the application. The compensation can be obtained in respect of revenue losses incurred as from 1 March 2020.
The NOW measure provides for a compensation in the wage costs of both permanent employees and employees with a flexible contract (in as far as they remain employed during the period applied for). Condition precedent for the NOW measure also is that no personnel will be dismissed for economic reasons. The employer is required to commit to this prior to applying for the NOW measure.
For clarity’s sake, we point out that employees falling under the new NOW-measure will remain entitled to their full salary and that the NOW measure will not impact their eventual entitlement to state unemployment benefits (or the duration thereof).
Currently, government agency UWV is working on the practical implementation of the NOW measure in order to have it enter into force as soon as possible. As soon as the measure enters into force, Employers should (contrary to the existing Dutch regulations on a reduction of working hours) apply for compensation at the same government agency UWV.
11. General Data Protection Regulation
According to the Dutch Data Protection Authority (AVG), the employer has no justified reason to register any information on the nature of an employee’s illness. It is recommended to only collect this information orally and not to keep or store any of the responses. Also, the employer may not directly ask for the nature of the illness. The employer is allowed to ask questions that may be related to the corona virus, but only general questions such as which (high risk) countries he has visited in the past weeks. Questions as to how the employee is feeling, can only be done by the company doctor or occupational health and safety service on behalf of the employer.
12. Special postponement
On 17 March last, the government announced that entrepreneurs will be able to apply for a suspension of payments easier. The Dutch Tax Authorities will cease all recovery measures immediately (upon application). Suspension of payments can be applied for in respect of personal income tax, corporate tax, wage tax and VAT. Entrepreneurs will be given a longer period of time to provide the required evidence. Based on the latest information, the statement of a third party expert can be provided up to 4 weeks after the application was filed. The exact conditions that such a third party statement should meet, are currently still under discussion. The Tax Authorities expects to be able to provide further information in this respect soon.
13. Pension: restricting conditions and working from home abroad
Some pension providers (insurance companies) apply exclusions based on the conditions included in the policy. If an insured employee travels to a risk area, this may have consequences for the insurance cover provided. These conditions are not new, but currently there is an increased chance that these policy conditions can be applied if an employee travels to a risk area. Most pension providers have by now indicated how they deal with this new situation. The vast majority of all pension providers indicate that they follow the advice of the Dutch Association of Insurers (in Dutch: Verbond van Verzekeraars). This entails that the restrictive conditions do not apply if an employee would die in one of the designated risk areas as a result of the COVID-19 virus. In that case, benefits will thus be paid out in accordance with the pension regulations.
If an employee does not live in the Netherlands and is currently working from home in connection with the COVID-19 virus and therefore no longer spends all of his working days in the Netherlands, this may have consequences for his pension accrual. Pursuant to the Dutch Wage Tax Act, pension may only be accrued in respect of salary relating to Dutch working days. If pension is accrued in respect of salary relating to working days abroad, the pension accrual will become excessive. Normally, this can be prevented by cross-charging the relevant part of the Dutch pension contributions to the foreign entity. This is, however, not always possible if an employee is working from home. In those cases, the (Dutch) Tax Authorities have approved that the pension contributions will not be cross-charged. If there is a foreign entity in place, please contact us directly, to prevent any negative pension consequences.
14. Contact person
It is advisable to appoint a health contact person within the company who employees can contact with questions regarding the corona virus.
To conclude, employers should carefully consider - and regularly reconsider, as the circumstances change on a daily basis - all potential measures and their consequences, as summarized above.
Please note that the above mentioned is only a high-level overview of the obligations that must be taken into account by the employers. Should you require any further assistance, please do not hesitate to contact one of the members of the Employment law team and Social security/HR team of Deloitte (Legal) directly.
Employment law team
- Anne-Marie van den Belt (email@example.com)
- Jasper Hendriks (firstname.lastname@example.org)
- Fraukje Panis (email@example.com)
- Clim Giesen (firstname.lastname@example.org)
- Stella Evers (email@example.com)
- Lot Allema (firstname.lastname@example.org)
Social security team