The coronavirus has the Netherlands under its spell. The government has announced drastic measures. All schools, childcare, catering and gyms are closed until April 6, employers are advised to let their staff work from home as much as possible and we must keep a minimum distance of 1.5 meters from each other at all times. We are receiving more and more questions about the consequences of the coronavirus in the workplace. The experts from answer below FHI partner Lexsigma Advocaten those questions.
Is your question not listed? Don't hesitate and send us an email: Corona-laborsrecht@fhi.nl
You can also contact Lexsigma Advocaten directly in Amsterdam (020 – 8940700 and ask for Lara Smeets, Bob van der Kamp or Ramon Pasma).
Safe working environment and working from home
How do I create a safe working environment?
As an employer you are obliged to create a safe working environment. Keep an eye on the advice of the RIVM. These advices may change. In any case, ensure that all hygiene measures are known to the staff and are complied with. As an employer you have a right of instruction. Employees must follow the measures. Make sure that everyone keeps sufficient distance or otherwise wears protective clothing. Also make sure you have enough hand soap and clean regularly. Finally, it is important that employees can ask questions. Don't forget to be extra alert to vulnerable employees, such as the elderly, pregnant or chronically ill.
Should I let my employees work from home?
The government has advised employees to work from home as much as possible. However, in some professions this is not possible. The advice is to always assess the situation on a case-by-case and day-by-day basis. All employees with complaints such as colds, sneezing and fever or who have come into contact with a person from a risk area can be asked to stay at home and avoid contact as much as possible. This is to protect your staff and organization.
Can my employee refuse to come to work if working from home is not possible?
If the employee is afraid to come to work, but there are no concrete indications that the working environment is unsafe, the employee will simply have to come to work. The advice is to talk to the employee. Try to take away the fear. If the employee ultimately continues to refuse to come to work and, for example, cannot work from home, this will constitute a refusal to work and you will be able to stop receiving wages. You must first warn the employee about this.
Schools closed
What if my employee has a child at home and cannot arrange childcare?
The government has closed schools and childcare from Monday 16 March. A consequence of this is that parents have to arrange childcare elsewhere. If the employee is unable to arrange immediate care, 1 or a maximum of 2 days of emergency leave can be taken. The employee is then entitled to continued payment of wages. If the child has not yet been accommodated elsewhere, the employee will have to consult with the employer about a solution. This includes unpaid leave or taking vacation days.
If a child or family member is ill and the employee is the one who has to care for that person, the employee can apply for short-term care leave. The employee is then entitled to 70% continued payment of wages (unless collective labor agreement or employment contract prescribes a higher percentage).
Continued payment of wages
Is my employee entitled to wages if he is ill due to the Corona virus?
Yes, the employee is entitled to continued payment of wages. The employee must report sick in the normal way and then follow the instructions of the employer and company doctor. Instructions from GGD and RIVM can be added to this.
Is my employee entitled to wages if he is in (family) quarantine at home?
If an employee is in quarantine because he himself has tested positive but has no complaints, for example, or one of his family members has a fever, this is a precautionary measure. The employee is then not ill. In the case of Corona, this measure usually lasts 2 weeks. The employee cannot then come to the workplace. The employer can ask to work from home and in that case will make the necessary arrangements. For example, consider bringing the PC/laptop and office chair from the office.
In most cases, the employee who is in quarantine will be entitled to continued payment of wages. The main rule is that the employer is obliged to continue to pay wages determined according to time if the employee is unable to perform the work in whole or in part, unless the entire or partial failure to perform the work should reasonably be borne by the employee.
If the employee indicates that he or she cannot work because care needs to be provided to one of the family members, the employee can claim short-term care leave for these care hours (maximum 2 weeks). The employee is then entitled to continued payment of wages for those care hours, subject to a collective labor agreement provision for wage supplementation.
Is my employee entitled to wages if he becomes infected during his holiday and/or has to be quarantined?
In principle, if your employee is ill, he or she must continue to pay wages. The days that your employee is ill do not count as vacation days, but as sick leave days. This may be different if your employee has consciously traveled to the risk area, or at least you as an employer can then say that the employee has consciously taken the risk of being ill. Whether this is ultimately sufficient to successfully defend against a claim for continued payment of wages in the event of illness is doubtful. It is difficult to prove that the employee intended to become ill.
Is my employee entitled to wages if he cannot return from his holiday address?
The basic principle of the law is that if no work is performed, there is a right to wages, unless the employee is not responsible for not performing work. The crucial question in this case is whether the inability to return to the Netherlands can be seen as the employee's own fault. In many cases this will not be demonstrable. This may be different in the special situation in which an employee - knowing that he cannot return - has still gone abroad.
Holidays
As an employer, can I withdraw or refuse a holiday request?
The starting point is, unless otherwise agreed in a collective labor agreement, that a holiday is determined in accordance with the employee's request. An application can only be refused if the employer has compelling reasons to do so. The Corona crisis can provide such an important reason, especially in the vital professions. The important reason and the rejection of the application must be communicated within two weeks of the application, failing which the application will still be approved. The same criterion of 'important reasons' applies to withdrawing/amending an approved holiday application. In this case, also keep in mind that the employer must compensate the damage suffered by the employee due to the change in the holiday period.
Apply for a wage subsidy and other tips regarding personnel costs
Temporary measures: temporary worker, probationary period, reducing flexible hours
In the short term, the employer can compensate for a drop in work by scheduling temporary workers, on-call workers or other employees with flexible working hours less. In addition, employment contracts for which the probationary period is still running can be terminated within the probationary period.
It is also possible that the employer will discuss with his employees how they can solve this together. It is possible that employees are willing to take a number of vacation days or unpaid leave during these times. However, this cannot be enforced and often only becomes reality when other measures prove insufficient.
Reduction of working hours
The short-time working scheme has been stopped. Instead, you can soon apply for the temporary one Emergency Bridging Employment Measure (NOW) (more information below)
All current applications for working time reduction will be converted into an application for the new emergency measure. The UWV may request additional information from you.
If the working time reduction was already granted for the first six weeks, you will retain this entitlement. You can no longer request an extension. In that case, you can rely on the new emergency measure NOW.
The employee remains employed during the reduction in working hours, but is not entitled to wages for that part of the reduction in working hours. For these hours, the employee falls back on unemployment benefits. In recent days it has become apparent that it was believed that the employer was obliged to supplement this wage up to 100%, so that the employee would hardly notice it. However, this is incorrect (except when a collective labor agreement prescribes a wage supplement). The Unworkable Weather Regulations (effective date January 1, 2020) state that the employer is not obliged to continue paying wages for the part of the reduction in working hours. This means that the employee is entitled to 70% of his salary; namely the amount paid out as unemployment benefit. The consequences are even greater for employees with a high wage, because they receive 70% of the maximum daily wage (maximum monthly wage is € 4,769.34).
Since the expectation (also among the trade unions) was that employees would remain entitled to their full wages in the event of a reduction in working hours - everyone had overlooked the effect of the Unworkable Regulation! – it is expected that there will be protests against the drop in salaries.
As an employer, you can - out of leniency and if financial resources permit - choose to voluntarily supplement the salary up to 100%.
Emergency Bridging Employment Measure (NOW)
This emergency measure cannot yet be requested. As soon as more information about this becomes known, it will be reported here.
The NOW application does not change the content of the employment contract. This means that the employee is entitled to 100% continued payment of wages and that work must be carried out as usual. In principle, the subsidy via the NOW is granted for three months. The greater the loss of turnover, the higher the amount of wage subsidy. For an overview I refer you to https://www.rijksoverheid.nl/onderwerpen/coronavirus-covid-19/veelgestelde-vragen-per-onderwerp/financiele-regelingen/now
Questions that cannot yet be answered include:
– What are included in wage costs (gross? Including employer's charges?)
– Reference date March 1 has been announced. But is this date compared to Jan-Feb? Or the 12 months before?
– Does this emergency fund also apply to disabled employees?
STEP-BY-STEP PLAN to claim the NOW? Prepare yourself.
NOW/reduction of working hours and participation
A director who wants to apply for a wage subsidy is not obliged to request approval from the works council, unless an agreement has been made about this in the collective labor agreement. The advice is therefore not to ask for this consent. As soon as you voluntarily request consent, you are dependent on it. You can then no longer withdraw your request. The works council could, for example, impose a requirement for approval that all employees retain the right to 100% continued payment of wages.
If the reduction in working hours itself leads to an adjustment to the work schedule, approval for this adjustment will have to be requested (Article 27 Wor, paragraph 1, sub b).
Privacy and Corona
Can I test an employee for Corona?
No. An employer may not test an employee himself. However, if there is a reason to do so, an employer can ask that the employee be tested by a doctor. In theory, this could be a company doctor. However, it appears that in the Netherlands testing is only done (by general practitioners/GGD) if there are complaints. So always discuss with the employee how he or she feels. The advice is, even if the employee has not been tested but does have complaints (nasal cold, fever), to send the employee home and only return to the workplace if he is free of complaints.
What can I ask my staff?
The usual standards from privacy legislation remain the starting point. This means that you may not request or register any medical data. If an employee tells you something about his medical situation of his own free will, you are also not allowed to register this.
However, you may ask in which (risk) area your employee went on holiday. You can also ask your employees to pay close attention to their own health. If you have any questions, you can refer them to their own GP or company doctor. The employer is not allowed to take the temperature himself.
If an employee is ill, you may (must) also ask him or her to go home. As an employer, you are obliged to create a safe working environment. Allowing an employee infected with Corona creates an unsafe situation.
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