Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated: March 27, 2020. Please note that the information in part VII of this article (Working Time Reduction Scheme) has been superseded by the information provided in this ASAP: The Netherlands: Emergency Fund Bridging Employment Replaces the Working Time Reduction Scheme
* * *
Over the past few days, the Netherlands has been hit by a number of coronavirus (COVID-19) outbreaks. COVID-19 has a direct impact on the workplace. How should employers and employees deal with COVID-19?
Littler’s Netherlands affiliate has created a set of frequently asked questions and answers for employers. 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 employers observe?
Under Dutch law, employers are obliged to ensure their employees have a safe and healthy (work) environment. In relation to the COVID-19 outbreak, this means:
- employers should follow the publications and updates of the Dutch National Institute for Public Health and the Environment (RIVM) to help prevent the spread of the COVID-19 and to communicate these recommendations to their employees.
- employers should inform their employees proactively about COVID-19 in order to prevent or reduce unrest in the workplace. Please download our Coronavirus (COVID-19) 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 human resources should abstain from providing their own medical opinions about the effects and spread of the COVID-19. They should correct misinformation promptly.
Can the employer impose a travel ban to COVID-19-affected areas?
Yes, as the employer must take reasonable measures to protect its workforce against COVID-19 and as such can prohibit employees from travelling to COVID-19-affected areas.
The decision to cancel or defer business travel will require a balancing of all relevant factors. This assessment includes, among other things, 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 duty 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.
By the same token, 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 employees inform the employer about their past or future travel destinations?
The employer has the right to instruct the employee to be transparent about any trips made or planned to COVID-19-affected countries. If 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 of this policy.
The obligation to provide information on (private) travel may clash with the employee’s right to privacy. Employers should bear in mind that if they ask their employees about their (past) travel plans and document those discussions, the employer would need to comply fully with the General Data Protection Regulation (GDPR) concerning any records. If the employer inquires verbally only about past travel plans, the GDPR does not apply. In case of doubt, the employer could instruct employees to visit the company doctor or send them home.
Can the employer send employees home?
In the event of a possible employee infection with COVID-19, an 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 COVID-19 and related symptoms
Can the employer ask its employees whether they are suffering from COVID-19-related symptoms?
The GDPR does not prohibit asking this question to the extent that it is done orally and not in writing. Again, in case of doubt, the employer should instruct the employee to visit the company doctor.
Can the employer inform its staff about colleagues having been diagnosed with COVID-19?
Yes, the employer has the legal obligation to inform its employees that a colleague has been diagnosed with COVID-19. 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 COVID-19 infection?
Although it might seem a practical solution for employers to scan their employees for COVID-19 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 allowed only based on specific legislation, for example, testing airline pilots for alcohol or drug use.
However, if a suspicion arises that one of its employees has been infected with COVID-19, the employer should take all reasonable measures needed to ensure a safe workplace. The employer can instruct the employee to visit the company doctor. If the employee refuses to cooperate for privacy reasons, the employer is allowed to send the employee home.
VI. Remuneration of quarantined and diagnosed employees
Are quarantined employees entitled to their salary?
If employees have been quarantined, their remuneration should be continued.
Are diagnosed employees entitled to their salary?
If an employee turns out to be infected by the virus, they have 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 employees can therefore not come to work, are they 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 approval are as follows:
- at least 20% of the work capacity is decreased during a period of at least two weeks as a direct result of “extraordinary circumstances” that are not part of the employer’s normal business risk. Last week the Dutch government identified COVID-19 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-week periods, up to 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 or half of the working time per week and (ii) worked at least 26 out of the 36 weeks preceding the date the application for the unemployment benefits is made.
Can the employer dismiss employees due to COVID-19 affecting its business?
Generally, termination would be difficult as the employer will need to prove that due to economic circumstances, layoffs will be necessary for at least 26 weeks.