COVID-19 - Dutch labor law FAQ

IN-DEPTH ANALYSIS

The new challenge of coronavirus COVID-19 raises numerous questions in terms of employment law. We have collated the most important questions from the management team’s point of view for you. Caution is required in employ- ment law, as it always depends on each individual case. Legal advice is also very important in dealing with the virus as proper hand hygiene. This FAQ does not replace a review of the legal situation in individual cases and does not constitute legal advice.

Preventative response and prompt action is essential. Our expert task force members – Bart Hunnekens, Roos Seesing, Juultje van der Zanden and Joost Kokje - are available to support you.

Keyword	Question	Answer
General right to ask questions	Does the employer have a general right to ask about an employee's state of health?	No. Dutch law does not provide for a general right to ask questions about an employee’s state of health. Caution is advised with regard to data protection law. However, in case of a concrete/reasonable suspicion of illness, or for certain sensitive companies (e.g. health care/hospitals), or in a hazardous situation, there may be a right to ask questions (possibly through the intervention of the company doctor). If the employee does not want to answer the questions and there is a concrete/reasonable suspicion of illness, the employee can be sent home (with pay). Preferably the employee can then be ordered to work from home.
Employee / data protection	What applies to sickness in relation to colleagues?	Employee data protection must be strictly observed in the event of illness. In individual cases, it may be necessary to inform colleagues of the illness or non-illness due to your duty of care. However, the employer must ensure that the employees do not pass on the notification. In this respect, employees are obliged to maintain secrecy in order to protect the personal rights of the sick person concerned. A detailed examination of the individual case is recommended.
Duty to work	Can workers stay at home because of general danger or because of the “pandemic”?	No. If an employee is not sick, he or she has to show up for work. The risk of possible infection does not entitle the employee to refuse to perform his work. However, in case there is a concrete risk of possible infection and/or the RIVM advises against coming to work, it may be possible for the employee to stay home. It will depend on the advice and the severity of the situation at hand.
Medical examination	Can the employer demand a medical examination of the employee performed by the company doctor?	No, the employee cannot be obligated to undergo any medical examination. If the employee refuses, the employer can decide to send the employee home (with pay) and preferably he or she can then be ordered to work from home. However, the employer does need a cause for this. E.g. because the employee has been in a crisis region for which a travel warning had been issued. This is a question in each individual case. Furthermore, if there is a reasonable suspicion that the employee is ill, he or she should be advised to contact his or her doctor.
Operating risk		In principle, the employer bears the risk that, due to illness of the workforce, the business cannot be maintained. However, the employer can take various measures to minimize the financial risk, such as short-time work compensation (in case of not enough work) or overtime arrangements (in case of too much work).
Disinfectants / masks	Does the worker have to use disinfectants and are they obliged to wear a mask?	With the exception of special operations (e.g. hospitals, food production), there is no fundamental obligation on the employer to put up disinfectants or to equip employees with masks (unless personal protective equipment is required based on the Working Conditions Act). Correspondingly, there is no general obligation for workers to use disinfectants or to wear masks. If the employer wants employees to e.g. use disinfectants, this requires a company regulation. In the case of face masks, for example, the works council’s right of co-determination on the dress code should also be considered. The employee must also be instructed accordingly, e.g. with regard to the health hazards of incorrect use of disinfectants (skin diseases, allergies, etc.).
Recommendations of the RIVM	Must the employer following the recommendations of the RIVM?	Strictly speaking, there is no obligation to implement the recommendations of the RIVM. However, these recommendations must be taken into account within the framework of health protection measures, especially because the RIVM is also scientifically responsible for assessing the risk situation. For reasons of duty of care, the employer is therefore obliged to pass on appropriate and official recommendations to employees (e.g. hand washing rules, ban on travelling) and enforce these if necessary. Safe and healthy workplace Every employer has an obligation to ensure a safe workplace and in this context must: Identify and assess risks in the workplace; and Based on this, take appropriate measures and provide proper information to minimize the risk of contamination. In this context, at least the following measures will have to be taken communication of hygiene measures to employees; ensuring a clean workplace with extra attention to objects that are regularly touched; providing and communicating a clear policy on visiting customers and shaking hands; having sufficient soap, disinfectant and tissues in the workplace and toilets.
Posting	Can a worker refuse to be posted to a crisis area if there is a travel warning from the Ministry of Foreign Affairs?	Yes. The employee may only refuse to be posted if there is an official travel warning and/or ban. This follows from the mutual duty of good employment practices.
Illness (continued payment or remuneration	Should remuneration continue to be paid in the event of illness?	Yes. A sick employee is entitled to continued payment of salary. Even when the employee is on vacation; the days then count as sick days and not as vacation days, unless other valid agreements have explicitly been made about this (for example in the collective labor agreement).
Right to ask questions regarding crisis regions	Does the employer have the right to ask questions for employees returning from abroad?	Yes. However, the employee is not obligated to answer, nor is he or she obligated to comply with any medical tests. If the employer deems it a risk to have the employee working at the office, the employee can be send home with pay. Preferably he or she can be ordered to work from home.
Harmlessness to health (critical)	Can the employer insist on a health certificate?	No, if the employee is ill, he or she will have to be sent to the company doctor. It is the company doctor’s task to evaluate the illness and determine when the employee will be better or if the employee will remain ill.
Home office / remote	What applies with regard to home working arrangements?	In principle, employees cannot be obliged to work at home and employees cannot refuse to come to work. That is different only for well-founded reasons for fear of contamination. If employees go to work at home, it is advisable to make good agreements about accessibility, privacy and health and safety legislation and the use of company property.
School / nursery	What applies if the nursery or school is closed due to coronavirus?	The employee can apply for emergency leave and is entitled to a short period of paid leave on that basis. If that short period of paid leave (in principle the first day or days to arrange other types of childcare) is insufficient, there is still a possibility for a somewhat longer period of unpaid care leave.
Costs	Who bears the costs, e.g. for occupational health care?	The employer bears the costs of occupational health and safety eg for occupational medical care.
General duties employer	What are the duties of the employer?	Safe and healthy workplace Every employer has an obligation to ensure a safe workplace and in this context must: risks at the workplace are identified and assessed; and appropriate measures are taken on the basis of this and good information is provided to minimize the risk of infection. In this context, the following measures must in any case be taken communication of hygiene measures to employees ensuring a clean workplace with extra attention to objects that are regularly touched taking care of and communicating a clear policy about visiting customers and shaking hands; having sufficient soap, disinfectant and tissues in the workplace and toilets. Working from home In principle, employees cannot be obliged to work at home and employees cannot refuse to come to work. That is different only for well-founded reasons for fear of contamination. If employees go to work at home, it is advisable to make good agreements about accessibility, privacy and health and safety legislation and the use of company property.
Measures taken by the employer to mitigate the operation risk	What measures can an employer take to mitigate the operational risk of high sickness rates or supplier failure?	Dutch employment law provides a number of possibilities to mitigate the consequences of the corona virus. In case of not enough work - work reduction: the employer can apply for a reduction in working hours and part-time unemployment benefits if the business activity in the company has fallen to an abnormally low level. This regulation does not apply to on-call workers, temporary workers, self-employed persons without employees. It must be demonstrated that in a period of a minimum of 2 to a maximum of 24 weeks at least 20% less work will be available as the direct result of the corona virus. The working time reduction is in principle granted for 6 weeks and can be extended to a maximum of 24 months. If the work reduction is more structural, then a (collective) dismissal procedure can be considered for economic reasons.
		In case of too much work – Ordering overtime: In exceptional cases, the employer may order overtime. This overtime must be in accordance with the Working Hours Act, any applicable collective employment agreement and (if applicable) the works council will have to be consulted.
		Flexible deployment of personnel: There are numerous possibilities to deploy additional personnel. Precise advice is required in individual cases.
Meetings/fairs	Does the employee have to participate in meetings or trade fairs if this is in principle consistent with their employment contract activity?	Yes. There is no general right of refusal. However, considering good employment practices and to limit the risk of exposing employees to possible infections, the employer must check face- to-face meetings can be limited and/or a videoconference can be started instead. In case there is a concrete risk of possible infection and/or the RIVM advises against coming to work, it may be possible for the employee to refuse attending the meeting.
Duty of notification	Does the employee have to provide information on his whereabouts on his own initiative?	The employee is not obliged to provide the employer with information on their whereabouts on their own initiative.
Plan of approach	What should be the plan of approach? regulated in a corona virus emergency plan?	The employer is not only obliged to comply with the law, but must also ensure that the company’s organizational structure is able to respond appropriately to threats such as the coronavirus. In this respect, the following five key points are recommended as a reminder, which can, for example, form the basis of a management decision: Operational arrangements: Analysis of the existing regulations to identify the need for action and, if necessary, adaptation, especially with regard to emergency plans. Instruction and training of employees. Establishment of a crisis unit or a crisis management team. Delegation of supervision and monitoring duties to reliable and suitable staff and ensuring efficiency e.g. through clear reporting lines, task assignments. Moderate, level-headed communication both internally and externally with business partners, customers, the press.
Quarantine	What applies to quarantine if the employee is on a trip?	If it concerns a business trip, the risk of a longer absence is borne by the employer and an employee cannot be obliged to take vacation days. The costs (for example, accommodation) of the employee will then also have to be borne by the employer. In the case of a holiday / private trip, it is not necessary to take extra days off. After all, the employee follows a government measure. The additional costs are of course for the employee himself. The employee will remain entitled to his or her wages. However, When an employee travel privately to a risk area for which a negative travel advice applies and subsequently does not return to the workplace in time (for example due to an exit ban or quarantine), they must in principle bear the consequences themselves. These employees can be expected to hand in extra days off or a deduction from the salary can take place.
Holiday	Can an employee refrain from taking authorised leave on the grounds that travel opportunities are currently restricted?	No. If the leave is approved, it must also be taken in principle. The risk that the employee is not able to make the trip of their choice lies in the sphere of the employee. In special cases, deviations may result, for example, from special company regulations. Apart from the legal side, HR departments will often make exceptions for goodwill reasons. Furthermore, it can be deemed good employment practices if the employer accepts the cancellation of the holiday.
Insurance cover	Is the employee insured if they are infected by a colleague?	Yes. The employer has to pay a contribution to the statutory sickness benefits insurance.
Cooperation with colleagues from crisis regions	Can a worker refuse to work because their colleague has returned from a crisis region and fears contagion?	No, there is no legal ground to refuse work based on an assumptionthat a colleague is ill.