Employment: Employer rights and obligations
Employers have a duty to provide a safe and healthy workplace and to observe a general duty of care with regard to their employees. In addition, employers have a right to give instructions to their employees and to set rules regarding the performance of work and the maintenance of order within the company.
The coronavirus and its spread pose a potential risk to employee health. In addition, measures taken by the government to halt or slow the spread of the virus, such as the recommendation to work from home and the closure of schools, will affect many businesses.
In order to ensure that they fulfil the abovementioned duties, employers should be familiar with the most recent guidance issued by the National Institute for Public Health and Environmental Protection (RIVM) and the Public Health Services (GGD).
Which measures can/should be taken at work?
- Basic precautionary measures include the provision of hand sanitiser and the circulation of hygiene instructions (by e-mail, on the intranet and/or posters) regarding, for instance, the importance of regular handwashing, covering one's mouth and nose with a tissue when coughing or sneezing (or using the crook of the elbow) and refraining from shaking hands.
- Having regard to the government advice on social distancing, we advise postponing or cancelling, insofar as possible, business events involving face-to-face meetings and encouraging alternative means of communication, such as videoconferencing and conference calls.
- We recommend stress testing your IT systems regularly to ensure that the capacity is sufficient now that more employees have been instructed to work from home (see below).
What about teleworking?
- The current government recommendation is to work from home as much as possible. This means that you should minimise employee presence at the office and facilitate teleworking, unless this is not possible given the nature of the employee's position or for business continuity reasons.
- It is advisable to provide employees with information and advice on how to maintain a healthy and safe working environment when working from home. Your occupational health & safety service (arbodienst) can help you prepare such a document.
- An employee who works from home remains entitled to receive his or her regular salary and other emoluments.
What about employees who do not work?
- If, due to his or her role, an employee cannot work from home and refuses to come to the office, the employee is in principle not entitled to salary. However, the employer should be able to demonstrate that it has taken the necessary precautions to ensure a safe and healthy workplace in light of the spread of the virus. We advise discussing with the employee his or her concerns and trying to find a workable solution. You may wish to offer the employee unpaid leave, if feasible.
- Given the closure of all nurseries and schools (until at least 28 April 2020), an employee may not be able to work from home or at the office due to childcare responsibilities. It is good practice for the employer to discuss this situation with the employee and seek a solution. In this case, the employee may apply for leave and/or the employer may consider granting the employee statutory emergency leave under the Employment and Care Act (Wet arbeid en zorg). By nature, this type of leave is short term and must be reasonable. Other options include allowing the employee to take holidays for the time (s)he cannot work or granting unpaid or partially paid leave. An employee can however not be forced to take holidays.
- Employees who are idle due to a shortage of work remain entitled to their salary. In this case, the employer may be eligible for assistance from the Emergency Bridge Fund for Employment (see below). Otherwise, the employer may wish to discuss the situation with its employees and propose cost-saving measures, while appealing to the need for solidarity and business continuity. It should be noted, however, that employees are not obliged to accept cost-saving measures.
What about travel restrictions?
- You have the right to limit or cancel business travel and office-related trips, including unnecessary travel between various offices of the company, and place restrictions on business trips (for example, only with board permission).
- Private travel (i.e. holidays) in principle falls outside the scope of the employer's authority. However, the current government advice is not to travel abroad unless necessary. Considering this and the general risks involved, the employer can strongly discourage employees from travelling or ask employees to first consult with the board if they plan to travel.
What about illness, temperature checks and quarantine?
- Recent guidance (original version in Dutch) from the Dutch Data Protection Authority can help employers determine a strategy regarding checks. We expect further guidance to be issued in the near future, at the national level or from the European Data Protection Board, given the worldwide spread of the virus and its recent qualification by the WHO as a pandemic. In short, checks should be performed by the occupational health and safety service (arbodienst) or the company doctor (bedrijfsarts). That being said, an employer who performs checks only to determine if employees should be allowed access to the premises, without registering or documenting the information, could argue that it has a legitimate interest in doing so, given its obligation to ensure a safe and healthy workplace and protect employee and public health. It is unclear however whether this approach is entirely compliant with the applicable privacy rules (GDPR). For more information, please see our privacy section.
- Employers should follow the most recent guidance provided by the National Institute for Public Health and Environmental Protection (RIVM) and the Public Health Services (GGD). Employees who are experiencing flu-like symptoms, such as coughing, shortness of breath or fever, should be instructed to stay at home and contact their general practitioner or the company doctor.
- When an infection is diagnosed, the general practitioner or company doctor is obliged to report this to the GGD pursuant to the Public Health Act. The employee is in principle not obliged to inform the employer of the nature his or her illness and in any case the employer may not process this information due to GDPR rules. That being said, when an infection is confirmed, the protocol in the Netherlands is isolation, contact investigation and monitoring of the individual. The GGD will track down and monitor the infected individual's contacts in order to minimise the spread of the disease. The GGD will consult the employer to discuss potential measures (quarantine) regarding employees who may have had contact with an infected employee.
- Employees who are quarantined as a result of governmental measures but not (yet) ill may be instructed to work from home (if possible) and remain entitled to receive their full salary and emoluments.
- Employees who cannot work due to illness are entitled by law to be paid 70% of their salary, subject to the statutory minimum wage and capped at 70% of the statutory maximum (currently €4,769.34 per month, 70% of which is €3,338.54), unless the employment contract or applicable collective bargaining agreement provides otherwise (e.g. 70% or 100% of the employee's full salary, without a cap), which is often the case in practice.
What about financial compensation?
- On 17 March 2020, the Dutch government announced the introduction of the Emergency Bridge Measure for Employment (Noodmaatregel Overbrugging Werkgelegenheid) (NOW), which provides for financial assistance by the state to cover the wage costs of companies suffering from a significant drop in revenue (of at least 20%) as a result of the corona crisis. On 31 March 2020 the measure has been published. Employers can apply for the measure via an online form on the website of the UWV. Applications can be made as of 6 April 2020 until 31 May 2020. More information on the terms and conditions of NOW can be found here.
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