Corona virus: the position of the employer (3) – Travel, Working from home, Entitlement to salary and leave, GDPR, Withdrawal reduction of working hours

18/03 2020

Hereby update nr 3 of our Q&A Coronavirus.

Travel – business or holiday

If employees travel abroad on holiday while they must realise there is a real risk they cannot resume working in the Netherlands after their holiday, are they entitled to salary?
In principle, an employee is entitled to salary when not performing their work, unless the cause cannot reasonably be attributed to the employer. If employees place themselves in such a position through their own actions/fault that they cannot perform their work for a longer period than their original holiday, the employer may contend that they are not entitled to continued payment of salary. This position is reinforced if the employer has warned the employee beforehand.

We advise employers to urge employees not to go on holiday, if (1) the destination falls under the coronavirus risk area, (2) there is a real chance that the destination will become a coronavirus risk area during the holiday, (3) there is a real chance that borders will close and employees cannot travel back to the Netherlands after their holiday. In addition, employees must be informed that if they still choose to go on holiday, the consequences, including no entitlement to salary, may be at their own expense and risk.

Can the employer oblige employees to take holidays?
No, in principle, the employer cannot oblige employees to take holidays. This means that employees determine when to take holidays. Despite this main rule, a collective labour agreement or employment contract may stipulate that it is the employer and not the employees who may determine holidays. In such a case, the employer must consult with the employees when determining holidays. The employer should always determine holidays in good time, so employees can prepare for how to spend their holidays. Obviously, holiday arrangements can always be made by agreement in connection with coronavirus developments.

Can the employer cancel a future holiday?
The employer may want to cancel a future holiday because it wants to fully assign all staff by that time to compensate for the damage currently being caused by coronavirus. If a holiday has been scheduled, the employer may cancel it for serious reasons. An employee remains entitled to their holidays. In such a situation, there must be exceptional circumstances in which it may be reasonable for the employer’s interest to outweigh that of the employee. If an employee has incurred costs in such a case, for example because a holiday has already been booked, the employer must compensate the damage suffered by the employee.

In principle, it will be necessary to check only when the holiday starts whether one or more serious reasons exist to cancel it. This means that approved future holiday requests may not be cancelled because of current circumstances. Of course, the employer can consult with its employees about taking a few days’ holiday or cancelling future holiday requests because of current circumstances. The employer depends on the willingness of employees to cooperate; employees should voluntarily agree to such requests.

Working from home

May an employee stay at home for fear of contamination?
An employee may stay at home only if the fear of contamination is justified. If a colleague returns from a high-risk area, there is a risk of contamination. In such a case, an employee may consult with the employer about whether he/she is allowed to stay at home. The employee should also act as a good employee when a solution is being sought. The employer may also request an employee who has been in a risk area to stay at home on full pay to avoid possible contamination of the other employees.

Entitlement to salary and leave

To what extent are employees entitled to emergency leave because of the closure of schools and childcare facilities?
If an emergency occurs, employees are entitled to emergency leave. The closure of schools and childcare facilities qualifies as an emergency, a private necessity situation. By law, this lasts for ‘a short period, to be calculated fairly’ (for example from a few hours to 1-2 days). During this leave, the employer must usually keep paying salary in full. In this context, the employee has an obligation to notify the employer (stating reasons) before the leave or, if this is impossible, as soon as possible. As this is not a request that the employer has to grant, it cannot refuse emergency leave. The emergency leave should be as short as possible, at the latest until the employee has arranged childcare.

If the employee ignores their notification obligation or cannot demonstrate that there is a valid reason for the leave, the employer may, as a sanction, withhold salary for the hours that the employee has not worked. If the employee needs more than a few days to arrange childcare, the employer may consult with the employee about taking a few days’ holiday or unpaid leave.

To what extent can an employer offer or oblige employees to take short-term care leave?
If an employee has to care for a sick family member, they can apply for short-term care leave from the employer. The background to this legislation is that the legislator considers it important for employees to be able to combine work and occasional care tasks because of special circumstances. In our opinion, closing schools and childcare facilities qualifies as such special circumstances and entitles the employee to short-term care leave, possibly following emergency leave.

Short-term care leave is available for a short period and the duration of this leave depends on the circumstances (capped at twice the weekly working hours during a twelve-month period). During this short-term care leave, the employee may remain entitled to at least 70% of their salary (if this works out at less than the minimum wage, the minimum wage), but additional rules may apply (for example based on a personnel manual or collective labour agreement).

If an employee wants to or must stay at home longer than is legally permitted, the employer and the employee must make arrangements with each other, including, for example, taking unpaid leave or holidays.

When all employees must work from home (and therefore remain entitled to full payment of their salary), they cannot, in principle, be forced to take emergency leave or short-term care leave.

If employees cannot work because of the closure of schools and childcare facilities, are they entitled to continued payment of their salary?
During emergency leave (because of the closure of schools and childcare facilities), employees are entitled to their full salary. During short-term care leave, employees are entitled to at least 70% of their salary. If these forms of leave are exhausted, an employee can take voluntary holiday leave in consultation with the employer. In principle, there is otherwise no entitlement to paid leave.

Is a quarantined employee entitled to continued payment of their salary?
Employees who have to be quarantined are entitled to continued payment of their salary. If employees have to follow government measures and cannot work as a result, this is beyond their control. In this situation, the employer bears the risk of continued payment of salaries. This may differ if the quarantine was foreseeable, the employee was warned in advance and their position does not allow them to work from home.

Corona and GDPR

What about privacy and having an employee medically tested? 
If an employee is suspected of being infected with the virus, the GDPR does not allow an employer to have an employee medically tested. Under certain circumstances, an employer may send an employee home – on full pay – based on its duty of care towards the other employees.

Is an employer allowed to ask about the nature of symptoms or whether an employee has coronavirus?
In principle, an employer is prohibited under the GDPR from processing employees’ medical data. Thus, an employer may not formally ask about the nature and cause of an illness when an employee reports sick. This does not change in relation to coronavirus.

The supervisory authority, the Dutch Data Protection Authority (AP, Autoriteit Persoonsgegevens), states that under privacy legislation, an employer may not monitor employees for coronavirus. The AP also states that the employer may not assume the role of doctor. It is the task of the government in cooperation with the Municipal Health Service (GGD) to prevent the further spread of coronavirus.

We recommend not asking an employee direct questions about their symptoms or whether they have coronavirus. If there is any suspicion of contamination, send employees preventively to the company medical officer and always seek advice from the company medical officer about the actions that an employer might take. An employer may also ask the company medical officer to provide relevant information, for example, advice on the need for working from home/quarantine and the possible risk of contamination in the workplace.

Withdrawal of the regulation Reduction of working hours, announcement new temporary measure Emergency Fund Bridging Employment

Until Tuesday 17 March 2020 employers could apply for a reduction in working hours (WTV) permit to the Ministry of Social Affairs and Employment when they have 20% less work for a period of at least two week as a result of the coronavirus.

On 17 March 2020, the government has withdrawn the WTV regulation because the outbreak of the coronavirus has led to an unprecedented appeal for this regulation. The WTV regulation was not tailored for these far reaching consequences of the coronavirus.

Instead of the WTV regulation – please note that it is not possible to submit new requests – a new temporary measure has been announced by the government. This is called the Emergency Fund Bridging Employment (Noodfonds Overbrugging Werkgelegenheid (“NOW”)). The NOW regulation should support more employers in a faster way. The NOW regulation is also applicable to temporary workers and on-call workers.

Based on the NOW regulation, employers can request for a compensation for the costs of the employees’ salaries which amounts to maximum 90% of the total cost of salary of the employer. The concrete percentage of the compensation for each employer is related to the loss of the companies revenue. The compensation will initially be granted for 3 months which can be extended with 3 months (subject to certain conditions).

Employers are entitled to this compensation in case the employer expects at least 20% loss of revenue as from 1 March 2020 and the employer commits itself in advance that no request for a dismissal permit based on business economic reasons will be submitted for the employees during the period that the employer receives the compensation.

Employers could receive a payment in advance to a maximum of 80% of the expected compensation from the UWV.

It is not yet possible to request for the compensation based on the NOW measure as the government is still working on the implementation of this measure. However, employers will be compensated with respect to the loss of revenue since 1 March 2020. Also, please note the following:

  • In case an application for a reduction of working hours permit has been submitted which has not yet been processed, this application will be considered as an application for this new NOW regulation. So no new application for the new measure is necessary;
  • In case a reduction of working hours permit has been granted this permit remains applicable for the period of the permit (6 weeks). No extension is possible. Employers must then apply for the compensation based on the new NOW regulation.

As said, the NOW regulation has been announced in the afternoon of Tuesday 17 March 2020. The concrete conditions and formal rules are not yet available. Please monitor for further updates on implementation of the NOW regulation.

For more information on the current situation, you can consult the following sources:

Do not hesitate to contact us if you have questions.

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