Are employees entitled to continued payment of wages if the work cannot be performed due to the COVID-19 crisis?
Many employees can only perform their work from the office (e.g. receptionists, cleaners) or from a specific place of work (e.g. shop assistants and catering staff). Many of them are stuck at home due to special (government) measures, such as the closure of hotels and restaurants, shopping centres and offices (mandatory working from home). Pursuant to the law, these employees are, in principle, entitled to continued payment of their wages (save exceptional circumstances). After all, the COVID-19 crisis and the measures taken as a result come under the sphere of risk of the employer rather than that of the employee. Good employment practice also plays a role.
Note: if an employer wishes to apply for the temporary Employment Bridging Fund Emergency Measure (Noodmaatregel Overbruggingsfonds Werkgelegenheid, NOW), expectations are that the employer will be required to continue to pay the employee’s full wages.
What about the continued payment of wages if an employee is not able to perform all or part of their work due to the closure of schools and childcare facilities? What are the options in terms of paid and unpaid leave (Work and Care Act (Wet Arbeid en Zorg))?
Due to the current emergency situation, based on good employment practice and good employeeship, the following will apply:
- Employees must – if reasonably possible – be given the opportunity to work from home;
- A reasonable extent of flexibility may be expected of both the employer and the employee to have this run smoothly.
If, due to the closure of schools and childcare facilities, an employee cannot perform (all or part of) their work from home, the employee will be entitled to 1 to 2 days of paid contingency leave under the Work and Care Act. If the employee is still unable to resume their work after those days, the employee will, in principle, not be entitled to continued payment of wages. Dutch legislation offers the following possibilities:
- the employee may take holidays;
- the employee may take unpaid (parental) leave (Work and Care Act).
If any of the employee’s family members is ill and the employee is the only one who can provide the basic care, the employee may be entitled to take up to two weeks of short-term leave which will be partly compensated (Work and Care Act).
Are on-call workers (zero-hour contracts) entitled to continued payment of wages if they are not able to work due to the measures taken?
Since the implementation of the NOW on 1 January 2020, the laws and regulations for on-call workers have significantly tightened. The following rules also apply during the COVID-19 crisis:
- If the call is cancelled no more than 4 days in advance, the on-call worker will not be entitled to wages;
- If the call is not cancelled in good time, the on-call worker will be entitled to wages for the on-call period;
- If an on-call worker invokes the statutory legal presumption regarding the number of working hours and the employer cannot rebut this, the on-call worker will be entitled to continued payment of wages (equal to the average number of hours of the previous 3 months).
Note: the NOW will also apply to on-call workers. It is not yet clear what this will mean exactly and what the requirements are to qualify for the NOW. For that reason, we recommend to await the NOW.
May employees be asked to take holidays during the COVID-19 crisis? Or to use overtime hours built up?
An employer may request employees to take their holidays or to ‘use’ overtime hours. Employees can, however, not be forced to do so. For example, an employee may refuse the request to take holidays unless other arrangements have been made in the employment agreement, staff regulations or the collective labour agreement (CAO) (designation of holidays/overtime hours built up).
What does the temporary Employment Bridging Fund Emergency Measure (NOW) entail?
As you will know, on 17 March 2020, the Short-time Working Scheme (WVT) was repealed. The WVT has been replaced by the temporary NOW. The details of the NOW are expected to be published around 31 March 2020. The key elements of the NOW are:
- Employers with a loss of turnover of at least 20% may apply for financial compensation;
- The financial compensation will amount to up to 90% of the total wages to be paid to the employees – the exact amount will depend on the loss of turnover;
- The scheme will apply to loss of turnover from 1 March 2020 (the scheme has retroactive force);
- An employee may claim compensation for a period of 3 months, with the possibility for a once-only extension, for another 3 months (applications for extension may be subject to additional conditions)
- Expectations are that NOW applications may be submitted from 6 April 2020.
Additional conditions for NOW:
- An employer cannot dismiss employees during the compensation period – as it turns out now, this will apply only to dismissals on economic grounds during the compensation period;
- The employer will likely have to continue to pay 100% of the employee’s wages as of 1 March 2020, irrespective of whether the employee has, or has not, been able to perform all or part of their work.
What is the role of the Works Council?
The rights of the Works Council (WC) on the basis of the Works Councils Act (Wet op de ondernemingsraden) will continue to apply. The company and the works council must reach agreement on how these rights can be exercised in practice (in connection with the working from home). In most situations, technological means of communication would have to offer a workable solution.
As always, the WC is to be informed properly on any envisaged measures and decisions, to the extent relevant for exercising its duties (right to be consulted or right of consent). In the event of a change to the holiday scheme, for example, the WC is to be requested to give its consent.
Is (collective) dismissal possible?
An important condition to qualify for the NOW is that, during the compensation scheme, no employees can be dismissed for economic reasons. This means that, after expiry of the scheme, the employer may still be able to reorganise.
Apart from the NOW, the Netherlands does not currently have a prohibition on (collective) dismissal. Even in the present circumstances, the employer will be free to reorganise and, as a result, to cut jobs. The Employee Insurance Agency UWV will handle applications for a dismissal permit as usual (although it cannot be excluded that the application procedure will be delayed as a result of all the government measures).
Am I allowed to check my employees for COVID-19 myself?
No, except for care professionals. All employers are expected to follow the RIVM directives and to explicitly point those directives out to their employees.
Employers are, however, under a duty of care for a safe and healthy working environment. Employers may require their employees to monitor their health closely. Employees may check their health during working hours themselves, by measuring their temperature. Employers may also engage the occupational health and safety service (arbodienst).
Under the special circumstances of the COVID-19 crisis, an employer may also send a sick employee home (even if they only have vague symptoms or in case of doubt). The Dutch Data Protection Authority (Autoriteit Persoonsgegevens) has indicated on its website that, in these extraordinary times, an employer may require its employee to co-operate.
An employer may also at all times ask an employee to contact the company doctor, occupational health and safety service or GP for a check-up. If the doctor suspects that the employee has contracted COVID-19, he will urgently contact the regional health service. The regional health service will then be able to take measures for the workplace in consultation with the employer.
A new employee will enter my employment as at 1 May 2020. Can I already dismiss them during their probationary period on account of the COVID-19 crisis, i.e. even before commencement of the probationary period?
Yes, you can. An employer may, even before commencement of the probationary period, dismiss a (future) employee under the probationary period clause.
Note: If a new employment agreement is entered into later, it will not be possible to agree on another probationary period. Also, the first contract will count toward the ‘chain’ (i.e. the new contract is the second contract).
Am I obliged to continue to pay travel/expense allowances if the employee is working from home?
If no (further) travel or other expenses are incurred, an employer will – dependent on the specific circumstances – no longer have to pay those allowances. Unless the employment agreement or staff regulations contain specific arrangements in this respect based on which the employer may be obliged to continue to pay those allowances after all (whether or not for a limited period). Good employment practice also plays a role here (for example, continuing subscription fees that cannot be terminated).
Pursuant to tax legislation, it is permitted to continue to pay commuting and travel allowances, provided that the employee is absent for no more than six consecutive weeks. If the absence is expected to last longer, a fixed tax-free travel allowance may be paid during the current period and still be paid the next calendar month. After that, the regular travel allowance is allowed provided that the work is resumed in the regular manner (i.e. not at home).
What about working from home and occupational health and safety regulations?
The Working Conditions Act (Arbeidsomstandighedenwet) also applies to working from home. The occupational health and safety regulations are, however less strict than those for a work station within a company. If a home office does not comply with the occupational health and safety scheme and an employee suffers damage as a result, the employer will, in principle, be liable.
Working from home is subject to two important occupational health and safety rules, namely:
- the obligation to ensure an ergonomic design of the home office;
- pursuing a policy in the field of psychosocial workload (including work pressure).