Until January 1, 2020, the main rule in Dutch emploment law was: “No labor, no wages”. An exception to this main rule, so no work, but continued payment of wages, was if the employee had not been able to perform the agreed work due to a reason that should reasonably be for the account of the employer. Not being able to work as a result of an event during the holidays (with the exception of illness) was not a reason that was reasonably for the account of the employer. The employee's inability to return from vacation therefore had to be compensated for by taking extra vacation days or unpaid leave, for example.
Since January 1, 2020, this main rule has been changed to: “No labor, but wages”. This unless the cause for not (being able to) perform the work must be for the employee's account. In the old situation, the employee had to demonstrate that the non-performance of the work was at the employer's risk sphere. Since 1 January 2020, the employer must demonstrate that non-performance of the work is within the employee's sphere of risk.
When it comes to holiday destinations in corona time, we look at the travel advice from the Ministry of Foreign Affairs, indicated by the colors green, yellow, orange and red.
Code red does not recommend traveling to the country in question. In this blog we assume that employees will not travel to an area with code red.
Code orange does not recommend traveling to those countries, unless it is really necessary. Holiday trips do not fall under necessary trips. If someone does go, it is urgent advice from the national government to quarantine for two weeks immediately upon returning to the Netherlands.
The employee who consciously chooses to go on holiday to a country with code orange therefore knows that he will have to be quarantined after returning. If the employee is unable to work from home, he will be unable to perform his duties for two weeks. We believe that it can be said that this situation lies within the employee's sphere of risk. We advise employers to inform the employee (if the holiday destination is known) in advance that during the quarantine period he is not entitled to wages if he is unable to perform his work. Employees who are able to work from home (and probably have done so recently) are entitled to wages during a period of quarantine.
Can an employer ask an employee if he plans to go to an area with a code orange area, or on return whether the employee has been in a code orange area? That is allowed. The employer has an interest in that information in connection with the duty of care for the employee in question, for the other employees and for any visitors (customers / patients) of the company.
As stopping wages is a heavy measure, we advise employers to inform their employees in advance (for example via a travel protocol) in writing of the consequences that the employer wants to attach to going on holiday to a country with code orange if the employee is consequent cannot perform his work.
Code yellow means that there are security risks in this country or region that differ from what we are used to in the Netherlands. However, an employee can, without prejudice to the local rules, go on holiday to a country with code yellow. Since June 15, 2020, most European countries have a yellow travel advice.
If the situation changes during the employee's holiday; for example, code yellow becomes code orange, so that the employee still has to be quarantined after return, this will probably not be in the employee's sphere of risk. Travel to those countries is justified. That could be different if it was expected in advance that the code would change from yellow to orange.
There are no special security risks with code green and you can travel to that country without any problems.
It is important that it is clear to employees in advance what the consequences may be of traveling abroad in corona time. Do you have any further questions or would you like to draw up a travel protocol? Please do not hesitate to contact us.