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Duty of care
Employers have an obligation to create a safe working environment. As employer you will therefore have to take measures to prevent contamination in the workplace as much as possible. For example, the employer must provide employees with information about the virus, inform employees about the symptoms, point them to hygiene rules (washing hands, sneezing/coughing inside the elbow, using clean paper handkerchiefs, no handshaking etc.) and to facilitate these measures. Obviously, it is important that employers remain keen and follow up on any advice from the local authority, the National Institute for Public Health and the Environment (RIVM).
Right to instruct
An employer may give employees instructions to keep the workplace safe, for example:
- refuse the employee access to the workplace, if there is reasonable ground. For example, an employee who has just been in a high-risk area may be asked to stay at home for two weeks to see if any symptoms point to contamination. In addition, the employer may ask the employee to work from home, provided there is a home-based workplace which meets health and safety requirements. The employer will of course still be obliged to pay salary;
- ask the employee to immediately inform the employer if there is a potential risk of contamination, for example if an employee is advised by the (local) Public Health Service (GGD) to stay at home;
- instruct the employee not to travel privately to risk areas for which the Ministry of Foreign Affairs applies the code "not traveling" or "only necessary journeys", unless this journey is absolutely necessary;
- ask from employees to work with colleagues who came back from risk areas, if there are no symptoms pointing to contamination.
It is important to actively inform employees about what is expected of employees and what policy the organization implements.
Privacy
Privacy rules do not prevent an employer from asking employees questions in order to prevent contamination of other employees at the workplace. Questions that are necessary and focused on prevention of the spread of the disease may be asked.
The employer is not allowed to carry out health tests: this is prohibited under the GDPR.
Business trips abroad
It is advisable to keep an eye on the travel advices from the Dutch Ministry of Foreign Affairs and use this as a guideline as much as possible. A good assessment will have to be made as to whether it is necessary for an employee to stay in risk areas for work or to travel there. In order to guarantee health and safety at the workplace as much as possible a careful weighing of interests is expected from the employer.
Employees may refuse to travel to a risk area if the on-site working conditions do not meet the adequate health and safety requirements, or if there is no need to travel.
If an employee is at work in a risk area and his presence there remains necessary, the employer must give protection instructions and protect employees against the risk of infection as much as possible.
Entitlement to salary
If an employee is affected by the virus and as a result is unable to work, this employee is entitled to salary during illness. In addition, there are various situations in which an employee who is not sick is entitled to salary.
- If an employee is kept home preventively at the instruction of the employer, he is entitled to salary.
- An employee is most likely entitled to wages if he is obliged to stay in quarantine (abroad or in the Netherlands). After all, as an employer you would not allow someone at the workplace if this would mean a risk of infection for other employees. Following that line of reasoning, under Dutch law the obligation to pay salary remains with the employer.
- An employee is entitled to salary in the event that schools close and a child has to be looked after. However, this is only for a short duration; it only concerns the period during which alternative childcare must be arranged, the so-called emergency leave (“calamiteitenverlof”). If no alternative care can be arranged after a few days, the entitlement to salary will lapse or the employee must take holidays.
- An employee who stays at home without reason is not entitled to salary: fear of contamination without a substantiated ground is insufficient to be allowed to stay at home (whilst retaining the right to salary payment).
- If an employee goes on holiday to a destination for which the Ministry of Foreign Affairs has given a travel warning and becomes ill, then he is entitled to salary during the illness.
- If the employee travels to an identified risk area, in violation of an explicit instruction from the employer, the question is whether there is still a right to salary. If an employee actually becomes ill, he will most likely be entitled to salary during the illness. If the employee is not ill, but has to stay in quarantine in connection with a stay in such a risk area, it can be maintained that there is no entitlement to salary during that quarantine. It helps in that regard if the employer has given clear instructions in advance and mentioned these (possible) consequences to the employee.
Working time reduction
An organization can apply for a “subsidy” for working time reduction (“Werktijdverkorting”) at the Dutch Ministry of Social Affairs and Employment, for a maximum period of 24 weeks. There must be a direct link between the work reduction and the consequences of the corona virus outbreak. Organizations are eligible if they expect to have at least 20% less work throughout the company for a minimum of 2 and a maximum of 24 weeks as a result of the outbreak.
When the permit is granted, employers can apply for a temporary unemployment benefit for employees' hours not worked. The benefit can only be requested for employees for whom the employer has the obligation to pay salary.
This article is written by Dies Siegers from Van Bladel Advocaten. If you have any questions about a specific situation, you can contact her or one of the other specialists at our office via info@vanbladeladvocaten.nl or by telephone on +31 30-220 3111