6 May 2020
The Dutch government’s strategy is to slowly reopen certain parts of society that have been closed due to the corona virus. Childcare services and primary education will reopen on 11 May 2020 and young children will be able to attend sport activities again. Other measures, such as closing down restaurants and cafés, will remain in effect until at least 19 May 2020. The government is trying to gradually open up our society to limit the economic blows to the economy. However, moving forward to fast with reopening the economy will possibly cause for a substantial increase of new infections. By slowly creating a social distancing society, the Dutch government is trying to find the right balance between both interests.
It is expected of Dutch employers and companies operating in the Netherlands to contribute to this social distanc- ing society. Employers are slowly starting up their businesses and operations again, and could be struggling with finding the right plan of approach for this. The following checklist provides for a stage-by-stage plan, to help employers from an HR/employment law perspective planning and starting up their businesses.
If operations are gradually resumed, full capacity is not guaranteed. What proportion of the workforce is needed to start up the business? Who will be required to start working again and who can keep working remotely? Can a rotating system be operated?
At the beginning of the lockdown, things had to move quickly. If the home office activity is now to be extended for a longer period, the initial pragmatic solutions should now be re-shaped to create a (legally) secure basis for operations. Does the IT infrastructure allow permanent remote access or do capacities need to be increased? Are IT security and know-how protection guaranteed? Are data protection regulations observed? Is there a risk assessment for the home office? Does the home office comply with Dutch work conditions legislation and the flexible working act?
Is the company struggling with the payment of wages? Is the company confronted with a drop in turnover of at least 20%? Does the company pay social security contributions in the Netherlands? If all of these questions are yes, and the employer complies with other provisions, as stated in our FAQ Temporary Emergency Bridging measure to Preserve Employment (NOW), the company could be eligible for a compensation of wages for a duration of three (and in case of extension maybe even up to six) months. The NOW should prevent employers from terminating employment agreements and trying to unilaterally reduce working hours.
If a works council exists, it should be involved in the personnel planning at an early stage. Without the involvement of the works council, personnel planning is not possible. If the company applies for a compensation under NOW, the works council should be informed of this decision. If the company changes its working conditions policy, the works council will have to be involved as well.
In order to reduce risks of new infection as much as possible within the social distancing society, suitable protective equipment and control mechanisms must be put in place before the resumption of operations/production. Are sufficient disinfectants available and can their use be ordered by the employer? Are structural measures necessary/possible to interrupt chains of infection? Is a system to identify contact persons in suspicious cases? Is a process defined for health checks and reporting, such as mobile temperature measurement or similar?
Any mixing of the workforce increases the risk new infections. The fewer contacts each individual employee has, the better. Is the formation of small working groups, or socalled “team splitting” possible? Can the separation of the workforce only take place temporarily or also locally? If a works council exists, it should be involved in the personnel deployment planning.
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 (eg hand washing rules, ban on travelling) and enforce these if necessary.
Every employer has an obligation to ensure a safe workplace and in this context must:
In this context, at least the following measures will have to be taken
We recommend that each company sets up a corona task force, advising management on the best way forward, while being compliant with Dutch and foreign legislations and guidelines. If a corona task force has already been set up, now is the time to re-evaluate its duties and to provide the task force with a new objective to advise on the way out of the intelligent lockdown. In particular, the corona task force should bring together all monitoring and reporting duties. In order to limit management liability, the corona task force should have as a primary task observing new developments and reporting these back to the management (changes in legislation, stateimposed mask obligation, relaxation/tightening of restrictions, etc.).
Has it been discussed with the works council how the company efficiently can decide to takes measures when a re-lockdown occurs? The goal is to prevent push back from the works council when the company needs to act fast. Have measures been taken to ensure that the works council is able to act and take decisions even during a re-lockdown?
In the event of a re-lockdown, a surplus of staff could occur, especially if there were short-term staff shortages in the second stage due to the resumption of operational activities. Is there a legal framework for flexibly building up staffing requirements required at short notice, eg by setting up temporary staff and/or outsourcing activities at short notice? Is the company aware of any consequences to the NOW or possible redundancies when hiring temporary staff or outsourcing activities?
Should it be stimulated that employees work from their home office even after the initial lockdown is terminated? Has home office work proven its worth (cultural change/acceptance of the home office)? Do employees now have a right to work from home? Should vulnerable workers keep working from home, whilst workers not belonging to a risk group return to the company? To what extent is the principle of equal treatment to be observed? Which process is to be defined and adhered to in order to determine / query the employees belonging to the risk group in accordance with data protection regulations?
To what extent and when should business trips be allowed again? Should the company amend any travel policies to protect employees?
Due to the sometimes frustrated holiday planning of employees during the lockdown period, there is a high risk that there will be an increased number of holiday days taken during the period of economic recovery at a time when there is a high demand for personnel. How can holiday entitlements be reduced preventively and, if possible, amicably by planning holidays in advance? Can company holidays be arranged while the lockdown is still in effect? To what extent should the works council be involved in holiday planning and company holidays?
In the period of economic recovery, the company will – hopefully – be profitable again. However, during the lockdown the company could have experienced a (severe) drop in revenue. How can the company postpone or prevent the payment of bonuses some employees could be entitled to, based on their performance? And is the company free to decide to pay dividend to its shareholders, even though during the lockdown the company received governmental support (ie NOW)? How should the company deal with travel costs of employees who are partially travelling to work and partially working from home? Is it possible for the company to scale down the individual reimbursement of travel costs considering the drop in revenue?
For necessary contact between customers and the workforce, the employer should arrange for both his own workforce and, where appropriate, customers for necessary protective measures. This can also be done, for example, by providing protective masks and, if necessary, gloves. If workers travel plane again, it is possible that masks with a higher level of protection (FFP2 or FFP3) will be mandatory. The workforce must also be instructed in the correct use of protective clothing. The employer should meet these requirements in time and order the protective clothing as soon as possible, also consider issues such as reusability/cleaning and disposal of protective clothing.
The ordering of overtime requires a legal basis. Such a legal basis can be a collective agreement, a works agreement or an individual agreement. Without such a legal basis, there is no obligation for employees to work overtime. If there is a works council in the company, its rights of co-determination must also be taken into account in the organisation of overtime (when amending work schedules).
The protective and organisational measures introduced because of the pandemic could have as an effect that the personnel structure will have to be adjusted. Such adjustments may involve permanent changes in the organisation and/or working methods. Redundancy could follow and employment contracts could be terminated. Reorganizing the company’s business, should be based on economic, technological or organizational measures. Termination of employment contracts based on economic grounds will be difficult, considering the NOW. If the company is able to substantiate that organizational measures are necessary, not related to economic reasons, there will be a higher chance of success when requesting the Employee Insurance Agency (UWV) for a dismissal permit. Redundancies are also subject to mass dismissal notification if the corresponding threshold values are exceeded.
The protective and organisational measures implemented during a lockdown should be evaluated and, if necessary, adjusted. This way, the company will have an emergency plan if similar lockdowns occur. In particular, the emergency plan concept should be continuously revised and, if necessary, adapted, either based on specific events in the operation or on the basis of generally gained knowledge.