Holidays in times of corona
05 August 2021
Now that the summer holidays have started again, many employees are going on vacation. As of 1 June 2021, all travelers from a high-risk area will be subject to a mandatory quarantine. What rules currently apply to the employer and the employee? Read about some of the key issues related to holidays and corona in this blog.
Holidays in a high-risk area: is it allowed?
The employer may not forbid the employee to go on vacation in a risk area. Nevertheless, it is wise to advise against this (in writing) on the basis of negative travel advice from the government. It is also wise to inform employees about the risks and to make agreements (in writing) about continued payment of wages in the event of quarantine.
Continued payment of wages
Negative travel advice before departure
If the destination of the vacation already had a negative travel advice prior to departure, mandatory quarantine must be taken into account. In that case, the employee bears the risk of not being able to work. If working from home is not possible and the employee knew this before departure, there is no entitlement to salary.
Negative travel advice during vacation
Until recently, changes in the situation during a vacation were not within the employee's area of responsibility. Nowadays, people are more aware of the fact that vacation destinations can quickly change to orange or red. This means that changes in the situation during vacation will be the employee’s responsibility. Especially if there were signals before departure that the travel advice might change.
Green area before departure
If the employee is traveling to a green area, there is no need to take a mandatory quarantine into account. In that case, the inability to work (at home) is not expected to be the employee's responsibility. In that case, the right to wages is retained.
In practice, the employer may require the employee who has traveled to a high-risk area and is in mandatory quarantine, to take holidays for the entire quarantine period. It is not yet entirely clear how a judge will react to such a policy, as little case law has been published. Read more about taking holidays in our blog.
In general, a clear policy (which is also known to the employee) works to the advantage of the employer. This is because a clear policy ensures that the employee is aware of the possible consequences of going abroad. It is therefore advisable to draw the employee's attention (in writing) to the risk that travel advice (and the related advice concerning quarantine and continued payment of wages) may change.
What may the employer ask?
The employer may ask whether the employee has traveled to a high-risk area. This is permitted because of the duty of care towards other employees. An affirmative answer may also have consequences for the specific employee. Again, it is important that these consequences are included in the policy known to the employee.
On the other hand, the employer may not ask whether the employee has been vaccinated. This is not allowed because of the privacy rules. The employee is not required to disclose that information either. According to the General Data Protection Regulation (in Dutch: Algemene verordening gegevensbescherming), data about the health of the employee is special personal data and may not be processed.
A company doctor may ask whether the employee has been vaccinated, insofar as there is a good reason to do so. A good reason may be that the employee works with vulnerable people. The employee does not have to answer that question. If he does answer the question, this information may not be shared with the employer.
No compulsory covidtest
As an employer, you may not force your employee to test for corona. This is contrary to the fundamental right to physical integrity. A company doctor may conduct a test but may not share the test result because of medical confidentiality. The employee is also not required to share the results with the employer. If the employee nevertheless shares the test result, the employer may not record the result.
Employee returns with complaints
If the employer suspects that the employee has corona, it is advisable to send the employee home. As an employer, you may also oblige the employee who has symptoms to stay at home. The company doctor may test the employee for corona.
Employee returns sick
If the employee has corona and is ill, normal rules apply in the event of illness. The employee is then entitled to 70% of the salary and at least the minimum wage. Other arrangements may be made in the collective bargaining agreement or the employment contract.