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Coronavirus - Employment law update - the Netherlands

  • Netherlands
  • Coronavirus - Country overview
  • Coronavirus - Workforce issues
  • Employment law

02-04-2020

On 27 February 2020, the first patient was diagnosed with the coronavirus (CoVID-19) in the Netherlands. According to the 2 April 2020 update, 14.697 people in total have been diagnosed to be infected with CoVID-19 in the Netherlands (after testing). Only the serious cases are tested at this time. The actual figures of those who have been infected with CoVID-19 are estimated to be around 5 to 10 times the number of those diagnosed after testing. This short Q&A covers potential questions employers may have that are related to CoVID-19 under Dutch law. This article is updated regularly.

Please note that the questions and answers below related to employee travel are based on the situation that there is a choice for employees whether or not to travel. At this time, very strict travel restrictions apply within the EU. Also globally many countries are restricting travel both to and within their country. In many cases it may therefore be difficult for employees to travel for business, holidays or even to return back to the Netherlands after having travelled abroad.

Q&A: Employment questions related to the CoVID-19 under Dutch law

1. What are the general principles an employer should or could apply?

Answer: Pursuant to Dutch law, an employer is responsible for the physical and psychological health and safety of employees in the workplace and in this respect is expected to give instructions and take safety measures.

Below we have set out the general principles which NL employers should and could apply. These principles will be in line with the general principles of other countries and are permitted under Dutch law.

  • monitor and follow advice and guidance from relevant authorities such as the Dutch National Institute for Public Health and the Environment, RIVM, www.rivm.nl, such as washing your hands with soap regularly, coughing and sneezing into the inside of your elbow and using paper tissues
  • inform employees and direct them to relevant general websites such as https://www.government.nl/topics/coronavirus-covid-19/frequently-asked-questions-about-coronavirus-and-work
  • implement a (verbal) policy to have fewer face-to-face meetings and travel less both professionally and privately
  • assess the risks faced by employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
  • review the need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • review relevant insurance policies and guidance issued by their insurers
  • update contact details for staff and management
  • devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19; or who report symptoms and may have CoVID-19

2. Can an employer forbid his employees to travel abroad for business?

Answer: An employer can implement a policy that employees are in principle not allowed to travel abroad for business when not strictly necessary.

3. Can an employer oblige employees to travel abroad (to risk areas) for business?

Answer: If an employee refuses to travel to a risk area, taking disciplinary measures may not be reasonable.

If an employee refuses to travel abroad, not qualified as a risk area, an employer might be able to take disciplinary actions. Employers need to be sensitive and take into account reasonableness and fairness. There are many other ways of having a meeting and therefore it should be determined if each meeting can be held through sources such as Skype.

4. Can an employer forbid his employees to travel abroad privately (to risk areas)?

Answer: An employer can strongly recommend that employees do not travel, travel less and especially do not travel to risk areas to ensure the health and safety of his/her colleagues.

If an employee does travel privately, an employer cannot take disciplinary measures. If the employee travels privately to a risk area, the employer might be able to take disciplinary actions to protect their personnel, e.g. requesting the employee who returns from a risk area to work from home for the duration of the incubation period (2 weeks). This need to be determined on a case by case basis, ensuring decisions are reasonable and fair.

5. What if the employee refuses to come to the office?

Answer: As long as there are no restrictions issued for the Netherlands or a country where the employee has to travel, an employee is in principle obliged to come to the office.

Refusal from the employee could potentially lead to disciplinary measures, such as stopping the salary. Decisions on disciplinary measures should be made on a case by case basis. We also refer to the answers to the questions below.

6. Can the employer ask employees whether they have recently visited a risk area and if yes, what can the employer do?

Answer: Yes, employers can ask if employees have recently visited a risk area privately or professionally. If the employee has visited a risk area, the employer can ask the employee to visit the company doctor and send the employee home. Insofar as possible, the employee can continue to work from home.

7. Can an employer force an employee to work from home?

Answer: Yes, if this is in response to an identified risk and if working from home is possible and reasonable.

8. If an employee is sent home what measures do employers have to take?

Answer: An employer must ensure that the employee is also working in a healthy and safety workplace at home. When this occurs, we recommend to repeat the health and safety rules.

9. If the employee is quarantined, does the employer still have to pay the salary?

Answer: In principle yes.

Main rule is that no wages are due over the period during which the employee has not performed the contractually agreed work. However, the employee preserves the right to wages if he/she has not performed the contractually agreed work due to a cause which, reasonably, should be for the account of the employer. Being in quarantine is considered to be a cause that is in principle for the account of the employer. It will be exceptional that being in quarantine will be for the account of the employee. If an employee is actually sick, payment during sickness applies.

10. If on request of the employer, the employee should stay at home due to a suspicion of being infected, does the employer still have to pay the salary?

Answer: Yes.

Please see our answer to question 9. This also applies if the employee is not able to work from home.

11. If childcare services and/or schools are closed, is it allowed from the employee to stay home? If yes, is the employee still entitled to his/her salary?

Answer: Yes.

Please see our answer to question 9. This also applies if the employee is not able to work from home.

12. Can an employer force the employee to take holidays on (very) short notice?

Answer: No. The employer is not able to determine when an employee has to take holidays.

13. Can an employer force the employees to cancel their holidays on short notice?

Answer: In principle an employer cannot force employees to cancel their holidays. Employers can recommend that employees do not travel or at least do not travel to risk areas and if they do travel to risk areas, the employer could consider taking disciplinary action that needs to be determined on a case by case basis and to be reasonable and fair.

14. Can employers take the temperature of an employee?

Answer: This depends on whether the actual temperature is in any way being recorded by the employer. If not then taking a temperature is allowed as the GDPR does not apply. The employee can then be refused to enter and should be advised to contact the company doctor. If however temperatures of employees are recorded then this is only allowed if this process is carried out by, or executed under, the authority of a medical practitioner.

15. When can employers apply for the statutory reduction of working hours (in Dutch: “werktijdverkorting”)?

Answer: No, as per 17 March 18.45 hours CET this arrangement has been replaced by the so-called NOW-measure -  see our response to question 16.

Previously, it was confirmed that the CoVID-19 outbreak qualified as an exceptional circumstance for which employers could apply for a permit at the Dutch Ministry of Social Affairs and Employment for a statutory reduction of working hours.

In case permission was granted, employers were allowed to temporarily decrease their employees' working hours. To compensate employees that were affected by this reduction in working hours, employers could apply for temporary unemployment benefits at the Employee Insurance Agency (“UWV”, a Dutch governmental body) within one week after the period of the reduction of working hours had lapsed.

Over the last few weeks, a huge number of employers have applied for this arrangement. Approximately 78,000 employers have filed an application, for which the application system was not designed. On 17 March 2020, the Dutch government therefore decided to cancel this arrangement with immediate effect. As a result, it is no longer possible to apply for a statutory reduction of working hours as of 17 March 2020. Pending applications will be automatically handled as a NOW application.

16. Will other government subsidies be made available to compensate employers for payment of wages to employees?

Answer: Yes.  On 31 March 2020, the Dutch government published the Temporary Emergency Measure for Job Retention (in Dutch: Tijdelijke noodmaatregel overbrugging voor werkbehoud or “NOW”) which was slightly amended on 3 April 2020. Please find the general framework of the measure below.

What are the criteria for eligibility and for how long will it apply?

The NOW-measure will apply to employers who expect to suffer a loss of revenue of at least 20% during a consecutive period of 3 months between 1 March and 31 July 2020.

This concerns the (expected) loss of revenue at the level of the legal entity. However, in the case of a group (within the meaning of article 2:24b Dutch Civil Code), the decrease in revenue at group level applies. For the purpose of the NOW-measure, a group includes foreign group companies to the extent that these pay wages in the Netherlands (e.g. branches). Other foreign group companies are excluded. If such group as a whole has no or a limited loss of revenue, it is up to such group to take responsibility for the employees of parts with more loss of revenue. The start date for the calculation of the loss of revenue shall also be consistent for each entity within the group.

When filing the application, employers can choose to calculate the loss of revenue starting the consecutive period of 3 months on 1 March, 1 April or 1 May 2020 (“NOW-calculation period”). Please note that the chosen start date cannot be amended and that notwithstanding a possible later start date of the NOW-calculation period the contribution to the wage costs described below remains related to March until May 2020.

In the NOW-measure, revenue is defined as the net revenue within the meaning of article 2:377 under 6 DCC i.e. the proceeds from the supply of goods and/or provision of services by the employer minus discounts, etc. and revenue tax, adjusted to amendments in ongoing projects as shown in the profit and loss account and determined on the basis of the same accounting policies as used by the employer in its most recent annual account.

The loss of revenue shall be calculated by deducting the expected revenue from the reference revenue and dividing this amount by the reference revenue. The reference revenue is defined as 25% of the employer’s revenue in 2019.

In addition, employers are required to adhere to the following "Requirements":

  • a. continue to pay their employees 100% of their salary as much as possible
  • b. refrain from filling an application to request a dismissal permit for business-economic reasons after 17 March 2020 and during the period for which the employer receives an advance payment of the NOW-measure compensation; (i.e. until 31 May 2020)
  • c. only use the contribution to pay employees’ salaries
  • d. inform the Works Council, or if there is no Works Council the Employee Representative Body or in the absence of both the employees that the compensation has been granted
  • e. keep proper records of information which could be relevant for determining the final level of compensation and retain these records for 5 years
  • f. file their wage tax declaration in a timely manner
  • g. inform the minister in writing of any circumstance which may be of influence to the compensation
  • h. after the period for which compensation was received has lapsed, the employer shall send a final calculation of the loss of revenue accompanied by an auditor’s report
  • i. if applicable, inform the municipality which has granted a wage costs grant (in Dutch: loonkostensubsidie) that compensation has been granted, these requirements further: “Requirements”)

Term

The NOW-measure will be granted for a period of 3 months. It can be extended once for another period of up to 3 months, possibly subject to additional conditions.

Where and when can employers apply for the NOW-measure?

Instead of filing an application to the Ministry of Social Affairs and Employment, employers will be able to file their application for the NOW-measure directly to the UWV via an online application form. It is expected that employers will be able to file applications as from 6 April 2020, and in any case from 14 April 2020, until 31 May 2020. The UWV expects that the first advances of the NOW-measure compensation shall be paid 2 to 4 weeks after the date on which applications can be filed, and has to decide on the application ultimately within 13 weeks of the application being filed.

What is the level of compensation?

Employers can apply for a contribution to the wage costs (including employer costs such as pensions) for March, April and May 2020 of up to 90% of the total salary for its employees. This applies to employees with indefinite term contracts and fixed-term contracts, provided that the employees with the latter contract remain employed during the period for which the NOW-measure is granted, but also to employees with more flexible contracts (e.g. on-call employees). Whether 90% of the total salary or a lower percentage will be granted, depends on the loss of revenue.

Advance on compensation

The following formula shall be applied to determine the advance on the compensation to be paid:

A* x B* x 3 x 1.3 x 0.9 = expected compensation.

A* = % expected loss of revenue

B* = total salary owed for January 2020, which will be determined based on the wage tax declaration which was filed ultimately on 15 March 2020.

80% of the expected compensation as calculated by using the formula above shall be paid as advance payment, to be paid in 3 instalments for which the aim is to pay the first instalment within 2 – 4 weeks.

Final compensation

The final level of compensation shall be determined by applying the following formula:

A x B x 3 x 1.3 x 0.9 = final compensation

A = % actual loss of revenue

B = the total salary as follows from B* above, with the exception that

  • any grants the employee receives from the UWV which were taken into account for B* shall be deducted from the total salary
  • 1.5 x the salary of employees for whom a dismissal permit was requested will be deducted from the total salary (“Penalty Deduction”) (unless the application for the dismissal permit is withdrawn ultimately on 6 April 2020 or 5 days after the application was filed)
  • the holiday allowance will be deducted from the total salary costs if the employer reserves the employees’ holiday allowance on a monthly basis throughout the year
  • individual salaries will be capped at EUR 9,538 gross per month

In the event that the salary costs for 1 March – 31 May 2020 (defined as C) are less than 3 times the salary defined as B, the compensation shall be reduced by applying the following formula:

(B x 3 – C) x 1.3 x 0.9

The actual wage costs (C) will be based on the employer’s wage tax declaration as filed by the employer to the Tax Inspectorate ultimately on 19 July 2020.

In the event that the employer files a request for a dismissal permit after 17 March 2020 and this application is not withdrawn ultimately 5 days after the application was filed, the final compensation shall be reduced by applying the following formula:

D x 1.5 x 3 x 1.3 x 0.9

D = the salary as defined under B of employees for whom a dismissal permit was requested.

Which documents are needed for the application?

The following information and documents shall be filed with the application for the NOW-measure

  • the calculation for the expected loss of revenue, expressed as a whole percentage point and rounded up
  • the start date for the calculation of the loss of revenue (1 March, 1 April or 1 May 2020)
  • the employer’s wage tax number
  • the bank account number on which the employer receives payments from the Dutch Tax Inspectorate with respect to wage tax
  • a copy of the employer’s bank statement which clearly shows the account number and the name of the account holder
  • if applicable, the file number of the application for statutory reduction of hours (in Dutch: Werktijdverkorting)

Please note that the UWV will only be able to make payments to Dutch bank account numbers. Therefore, employers with foreign bank account numbers are given a period of 4 weeks following receipt of the application to open a Dutch bank account and inform the UWV of the respective number.

It is recommended to request the assistance of an accountant as early as possible.

Given that the UWV will require the employer’s wage tax declaration (in Dutch: aangifte loonheffing) in order to process the application for the NOW-measure, it is advisable to file the wage tax declaration with the Dutch Tax Inspectorate as soon as possible. In the event that the employer cannot pay the subsequent wage tax assessment, the employer can request a postponement for payment thereof by sending a letter to the Dutch Tax Inspectorate. This letter should contain a request for postponement and a substantiation that the employer has difficulties meeting its payment obligations due to the COVID-19 pandemic. Unlike the usual process, this request does not have to be accompanied by an expert statement (e.g. auditor report) if the requested postponement does not exceed a period of 3 months.

Determining final level of compensation

Ultimately 24 weeks after the 3-month period which the employer used for the calculation of the loss of revenue has lapsed, the employer shall file an online application for a government grant to the Minister. This application shall in any case include:

  • the data on which the loss of revenue was based and supporting documents
  • the auditor’s report which accompanied the final calculation of the loss of revenue
  • a statement that the employer has complied with the requirements for eligibility as described above

The decision on this application shall be sent to the employer ultimately 52 weeks after receiving the application. This decision will contain the final level of compensation or (partial) denial of the application if the employer’s actions during or after the receiving advance payment can be deemed contrary to the purpose of the NOW-measure. Following this definitive decision, additional payment or recovery of the overpayment may take place.

Sanctions

In the event that the Minister suspects that the Requirements have not been met, the payment of the advance may be suspended.

If an employer files a request for permission to give notice for business economic reasons at the UWV and does not withdraw this request within the applicable period, a penalty deduction will apply to the final compensation amount (see also “Final Compensation” above).

Lastly, the advance payment may be reclaimed partially or in whole in the event of an unjustified application, an application for an amount which is too high or a violation of the requirements a – i mentioned above. 

17. Are government measures being taken to support independent contractors (‘zzp’ers’)?

Answer: Yes. The Dutch government has also introduced a few temporary arrangements to support independent contractors that are currently experiencing financial difficulties as a result of the CoVID-19 outbreak.

Independent contractors can apply for income support for a period of max. 3 months at their municipality to supplement their income up to the social minimum to be acquired for no consideration (up to approx. EUR 1,500 net per month).

Additionally, independent contractors can request from their municipalities a working capital loan up to a maximum of EUR 10,157 that can be used to solve liquidity problems. This loan shall be repaid by the independent contractor in due time. However, it is possible to include a postponement of the repayment obligation if a working capital loan is granted. In addition, a lower interest rate applies.

Municipalities shall decide on the application for income support and/or the working capital loan within 4 weeks after submission. Further details on the procedure how to apply for the income support and/or the working capital loan are decided by the municipality in which the self-employed person lives.

18. Is the government taking other measures to mitigate the economic impact of COVID-19?

Answer: Yes. The government has announced an Emergency Package for jobs and the economy, which includes several measures such as:

  • a grant of EUR 4,000 to be given to companies which have lost the majority of their turnover due to government measures to combat the CoVID-19 virus (e.g. food and beverage establishments)
  • several tax-related measures (retrospective assessment of the application to postpone tax payment, no fines for late tax-payment, reduction of interest for late tax payment to 0.01%, possibility to request decrease of preliminary tax assessment (in Dutch: voorlopige aanslag belasting)
  • several measures to facilitate the granting of loans

In addition to the above measure, the government has announced that it will take two measures related to the differentiated unemployment benefits premium which entered into force as of 1 January 2020.

  • the correction-provision which states that employers must retroactively pay the high premium for employees with an indefinite term contract who have worked more than 30% overtime in a calendar year, will be amended so as not to apply to sectors in which additional overtime is required due to the outbreak of COVID-19
  • the grace period during which the low premium is applicable to indefinite term employment contracts which have not been agreed upon in writing has been extended from 1 April 2020 to 1 July 2020. This is to allow employers to focus on more urgent matters during this time

For more information contact

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