Coronavirus - Employment law update - the Netherlands

• Netherlands

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

17-02-2022

In February 2020, the first patient was diagnosed with the coronavirus (CoVID-19) in the Netherlands. After almost two years of increasing infections and lockdowns, a lot of those measures were lifted from around January 2022. Although, society and working at the office is still not back to normal, the government has announced that most restrictions will be lifted soon, the suggested date being [18 February 2022]. We prepared a Q&A covering potential questions employers may have that are related to CoVID-19 under Netherlands law.

Please note that the questions and answers below related to traveling of employees, are based on the situation that there is a choice for employees whether or not to travel. Globally many countries have requirements to travel to and within their country (i.e. proof of vaccination or negative test result). In some cases it may therefore be more difficult for employees to travel for business, their holiday or even to return back to the Netherlands after having traveled 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 Netherlands law, an employer is responsible for the physical and psychological health and safety of employees in the workplace (including the homeworking environment) and in this respect is expected to give instructions and take safety measures.

Below we have set out the general principles which Netherlands employers should and could apply. These principles are in line with the general principles applicable in other countries and are permitted under Netherlands law.

• Monitor and follow advice and guidance from relevant authorities such as the Netherlands 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, using paper tissues and regular airing of indoor areas;

• 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 70 years or older; 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 dependents and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance, the latter being available on https://www.nederlandwereldwijd.nl/reizen/reisadviezen;

• 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. When determining whether business travel can be considered necessary, it is strongly recommended to take the travel advice for the destination country issued by the Netherlands government into account.

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, to a country that has not been qualified as a risk area, an employer might be able to take disciplinary action. 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 a meeting cannot be held through sources such as Skype or MS Teams.

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. However, employees cannot forbid employees to undertake travel abroad as part of a private trip.

If an employee does travel privately to a (high-)risk country, an employer can take the position that the employee is not entitled to pay during a period for which the employee is not able to work, e.g. due to the fact that the employee is obliged to quarantine either in the Netherlands upon return or abroad or is stranded abroad due to not being able to show a negative CoVID-19 test result or a proof of vaccination if this is required to return to The Netherlands and provided that the employee cannot work from home. This needs to be determined on a case by case basis, ensuring decisions are reasonable and fair. For example, where government requirements / advice for quarantine change during the period of the private travel, the employee may have a stronger argument that they would be entitled to pay after all. In any case, it is recommended that employees are informed about the (financial) consequences of traveling abroad for a private trip and then subsequently not being able to return to the Netherlands or being required to self-quarantine upon return (i.e. no salary payment).

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

Answer: If 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. However, when considering to require employees to attend work, employers shall take into account that the Netherlands government has still stated that employees shall work from home. If employees are working at the office, it is advised to keep 1.5 meter distance and to take additional hygiene measures (i.e. providing hand sanitizers, regularly clean and disinfect surfaces that many people touch and provide air conditioning for more ventilation). 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 request the employee to work from home during quarantine. In January 2022, the Netherlands government announced that anyone who has had a booster vaccination or who has been infected with Covid-19 less than 8 weeks ago, is no longer required to stay in quarantine. This means that an employee can work at the office after visiting a risk area as long as the employee does not have any Covid-19 symptoms.

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. However, we recommend to agree with employees about an appropriate split between working at the office and working from home.

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 safe workplace at home. This means that the employer must pay costs for ensuring occupational health and safety of the employee, including the costs of the ergonomic layout at home, especially if that would be on an ongoing basis. Furthermore, the employer must pay costs for technical resources (i.e. laptop, mobile phone and internet connection). As of 1 January 2022, employers can offer their employees a tax-free home working allowance of a maximum of EUR 2 per day. This allowance compensates extra costs for employees when they are working from home (i.e. water and electricity consumption, heating, etc.). When employees are working at the office, the employer can provide a tax-free travel allowance. Please note that the employer can not provide both allowances on the same day.

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

Answer: In principle yes.

The main rule is that wages are due over the period during which the employee has not performed the contractually agreed work, unless this shall reasonably be for the account of the employee. Being in quarantine is considered to be a cause that is in principle for the account of the employer. However, if an employee is quarantined due to travel to a (high-) risk country for private purposes, an employer can take the position that the employee is not entitled to pay during the period of quarantine provided that the employee cannot work from home and that the employer informed the employee about the financial consequences of traveling abroad for a private trip and then subsequently not being able to return to the Netherlands or being required to self-quarantine upon return. If an employee is actually sick, the rules for salary payment during sickness apply.

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. However, it should be assessed on the basis of reasonableness and fairness whether this applies to each individual employee and whether it can be asked of the employee to bear a part of the risk in this respect.

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: Pursuant to the GDPR, employers are in principle prohibited from processing any employee’s medical data. Therefore, results of temperature checks may not be processed in principle. When employers ensure that the results of temperature checks are not stored/processed and do not end up in an automated system, these temperature checks do not fall within the scope of the GDPR (and the Dutch Data Protection Authority (“DPA”) is therefore not competent). In this case, temperature checks should be performed in the least intrusive manner possible and indiscriminately to ensure compliance with fundamental rights. Alternatively, employees can be instructed to review health questions for themselves and/or self-test their temperature. They are not obliged to share the result of the check and any voluntarily provided information shall not be recorded/processed by the employer. The temperature self-testing and/or health questionnaire instructions should indicate which results would lead to an obligation for the employee to leave the workplace. Temperature tests can also be performed by or under the supervision of the Company doctor. The Company doctor can process the employee’s medical data but cannot share this with the employer as the employer is not allowed to process the employee’s medical data.

15. Can employers force employees to get tested for CoVID-19?

Answer: No. The government has indicated that companies whose employees cannot perform their work from home are allowed to set up a testing location on their business premises, in which employees can be tested under the supervision of the company doctor and/or Arboservice or take (supervised) self-tests. The government encourages employers to facilitate frequent and preventive testing of employees to ensure a safe working environment and to use self-tests for this purpose. Employers, however, remain obliged to take into account the general (privacy) restrictions in this respect (e.g. the employer cannot view medical data, testing must be completely voluntary, testing shall take place under the supervision of a medical professional unless an exemption to this rule applies, e.g. in case of self-testing etc.). More information with respect to setting up a test location (in Dutch) can be found here: https://www.werkgeverstesten.nl/.

16. Can employers force employees to get vaccinated against CoVID-19?

Answer: No. The current position in the Netherlands is that employers cannot require employees to be vaccinated as this would constitute a violation of the right to privacy and/or physical integrity. In addition, employees cannot be obliged to share with their employer that they have received a vaccine due to privacy issues. If employees share that they have been vaccinated on a voluntary basis, employers cannot process this data under the GDPR. Please note that it is possible that the position of the Netherlands government and/or Data Protection Authority will change, e.g. due to the fact that the position of other foreign supervisory authorities are becoming less stringent as well. A change in the position could lead to more possibilities for employers to ask employees about their vaccination status or to take certain measures to reduce the risks associated with asking such questions.

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

Answer: Yes. The government announced a Temporary Emergency Measure for Job Retention (in Dutch: Tijdelijke noodmaatregel overbrugging voor werkbehoud or “NOW”). The NOW-measure was published on 31 March 2020, after which several amendments and NOW 2.0, NOW 3.0, NOW 4.0 and NOW 5.0 were published. At this moment, NOW 6.0 has entered into effect. The NOW 6.0 relates to the period from 1 January 2022 to 31 March 2022. Companies can apply for the NOW 6.0 as of 14 February 2022. The application desk for advance payments is open until 13 April 2022. The NOW 6.0 also applies to start-ups. Start-ups are companies which started their business between 1 February 2020 and 30 September 2020. More information can be found here.

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 tax-related measures and several measures to facilitate the granting of loans. More information can be found here.