Coronavirus: Position of Employers

This article has been submitted by Dujat member L&A Employment Lawyers, providing information for employers regarding the Coronavirus. Should you have any questions, feel free to get in touch.

We are receiving a lot of questions about the position of employers in connection with coronavirus.

We have therefore compiled a number of points to consider and useful sources of information. Below we also provide answers to frequently asked questions.

Duty of care and provision of information by employers
Employers have a statutory duty of care to offer employees a safe and healthy (work) environment. Employers also have to inform employees about what coronavirus means for their work and whether there is an increased risk of catching the virus while performing their work. For these reasons, it is a good idea for employers to have up-to-date knowledge about the coronavirus outbreak and the measures which are being imposed and recommended by the government. On the basis of that information, employers can respond in a suitable way to a possible outbreak of coronavirus at their company. The National Institute for Public Health and the Environment [Rijksinstituut voor Volksgezondheid en Milieu] (RIVM) and the World
Health Organization (WHO) have published a number of guidelines to prevent the further spread of coronavirus. These include:

  • Clean the work location regularly with a disinfectant. Consult on this with the company’s cleaning service/staff.
  • Encourage employees to wash their hands as much as possible. One way of doing this
    is to make sure there are enough soap dispensers and posters showing the importance of washing hands and instructions on how to do so properly.
  • Provide paper tissues and towels and waste bins with lids in which they can be deposited after use.
  • Make sure that a plan has been drawn up for the situation in which an employee starts displaying typical symptoms of the disease. Which room could then be used to isolate
    the employee? Which employees run an extra risk of becoming ill? These could include older employees or employees who suffer from diabetes or heart and lung conditions. It would be a good idea for employers to formulate an answer to such questions as soon as possible. Employers should also inform the company doctor about the possible infection and
  • encourage people to work from home and assess possibilities for working at home, advise employees to take their laptop home with them at the end of the day and make sure a good teleworking policy is in place.

Right to issue instructions
Employers have the right to issue reasonable instructions to their employees. On the grounds of this right to issue instructions, employers can instruct employees to observe the above
guidelines. Employers are also allowed to ask employees whether they have recently visited a risk area, such as Italy or China. Privacy legislation (the GDPR) does not prohibit this. After all, employers have to be able to ask these kinds of questions in order to fulfil their statutory obligation to provide a safe and healthy work environment.

In the event of an outbreak of coronavirus in the Netherlands – where the first cases have now been reported – people may be advised to avoid public transport and busy locations. Work can be continued from home and employees then run a smaller risk of infecting each other in the workplace. The teleworking policy must comply with relevant legislation, including occupational health and safety legislation. If teleworking is not an option, employers can send employees home without any obligation for them to work. Employees will then reserve their entitlement to their salary. In this context we would like to draw your attention to the annex by our colleague Monica Smak LL.M. which was recently published on the Lexology website.

Consequences of violating the duty of care by employers
On the grounds of occupational health and safety legislation, employers must adopt an active position in the event of a health risk for employees. Employers must therefore implement
adequate policy to avoid employees becoming infected by coronavirus. This means that employers must take sufficient precautionary measures to protect employees. If an employee becomes ill at work because an employer has not taken any, or sufficient, precautionary measures, the employer should bear in mind that this employee may hold the employer liable for all loss and damage already suffered and to be suffered in the future.

Q&A relating to coronavirus for employers
Is an employee allowed to stay home for fear of infection?
An employee is only allowed to stay home if the fear of infection is justified. If a colleague returns from a risk area, there will be a chance of infection. In such instances, an employee can consult the employer regarding whether they are allowed to stay home. The employee has to adopt a positive attitude until a solution is found. What is more, the employer can ask an employee who has been in a risk area to stay home with retention of salary in order to avoid possibly infecting other employees.

Can business trips continue?
With regard to business trips, employers must comply with the travel advice of the Dutch Ministry of Foreign Affairs. Employers and employees must carefully consider whether
business trips to risk areas are absolutely necessary. In addition, employees can refuse to travel to risk areas, if the local employment conditions do not comply with the health and safety requirements that usually apply to their work. For further information about coronavirus, we recommend that you consult the RIVM website.

Suppose that schools have to close, and an employee cannot work because no childcare is available. Is the employee then entitled to continued payment of salary?
If schools have to close, this may lead to an emergency situation. In that case, an employee is entitled to calamities leave or short-term sickness leave. In a situation like that, an employer
cannot refuse a reasonable request for short-term sickness leave. You should always check the CLA as well for any agreements that have been made about calamities and short-term sickness leave.

Is a quarantined employee entitled to continued payment of salary?
An employee who has to go into quarantine is entitled to continued payment of salary. If an employee has to comply with government measures and cannot perform work as a result, this will be a situation which is beyond the employee’s control. In such a situation the employer bears the risk of continued payment of salary.

What is the position with regard to privacy and having an employee undergo medical tests?
If there is a suspicion that an employee is infected with the virus, an employer is not permitted, on the grounds of the GDPR, to have an employee undergo medical tests. However, an employer can send an employee home in certain circumstances – with retention of salary – based on the employer’s duty of care for the other employees.

Can an employer implement short-time working?
If, as a direct consequence of ‘extraordinary circumstances’ which are not part of the employer’s normal operating risk, an employer has at least 20 percent less work during a period of at least two weeks, it is possible to apply for short-time working [werktijdverkorting] (wtv) to the Ministry of Social Affairs and Employment [Ministerie van Sociale Zaken en Werkgelegenheid] (SZW). Up to now, 61 applications have already been awarded for a total of 715 employees, as shown by figures from the ministry itself. Incidentally, short-time working can only be applied for in conjunction with employees for whom an obligation to continue paying salary exists. If the ministry issues a permit, an employer can apply to the Dutch Employee Insurance Agency [Uitvoeringsinstituut Werknemersverzekeringen] (UWV) for temporary unemployment benefit for its employees.

At the end of the period covered by the permit, an employer can apply to the UWV for unemployment benefit for its employees for the hours they did not work during the period covered by the permit. Unemployment benefit will be granted to employees who fulfil the requirements. In most cases, an employer will continue to pay employees their full salary. This depends on the agreements included in a CLA or employment contract. The UWV will pay the temporary unemployment benefit to the employer. In this way, the employer saves on salary costs and no employees have to be dismissed.

Are employers allowed to ask about the nature of the symptoms and/or whether it is coronavirus?
On the basis of the GDPR an employer is, in principle, prohibited from processing employees’ medical data. For that reason employers are not allowed to ask about the nature and cause of the illness if an employee calls in sick. The same applies in the coronavirus situation.

The regulator, the Dutch Data Protection Authority [Autoriteit Persoonsgegevens] (AP), stipulates that, within the framework of privacy legislation, an employer is not allowed to carry out coronavirus checks. The AP also states that an employer is not allowed to adopt the role of physician. It is the task of the government, in cooperation with the Municipal Public Health Services [Gemeentelijke Geneeskundige Dienst] (GGD), to prevent further spread of coronavirus.

Our advice is to avoid asking employees direct questions about their symptoms and/or whether they have coronavirus. If there is any suspicion of someone being infected, employers should send employees preventively to the company doctor and should always ask the company doctor for advice about what they may and may not do. However, an employer can ask the company doctor to provide relevant information and also, for example, obtain advice about the need for employees to work from home or to be quarantined and about the possible risk of infection in the workplace.

We have set up a central helpdesk (the HR ServiceCenter), but are helpdesk staff allowed to record all coronavirus reports?
As also indicated under question 1 it is not permitted, within the framework of the GDPR, to process employees’ medical data. Steps will therefore have to be taken to make sure that the helpdesk does not record medical data on specific employees, nor process such medical data which can be directly or indirectly traced to a specific employee. On top of this the recording of data linked to a coronavirus report must be kept to a minimum, this information will have to be adequately protected, it may not be used for a different purpose and it must be deleted as quickly as possible.

If you would like to find more information about the state of affairs with regard to coronavirus, the government recommends that you consult the following sources:
– the website of the RIVM;
– the website of ArboNed; and
– the travel advice of the Ministry of Foreign Affairs.

If you have any questions, please do not hesitate to contact us.

With kind regards,

Irene Francken – van der Ven & Arlette Putker-Blees

L&A advocaten B.V.

tel:    +31(0)20 7608810
fax:   +31(0)20 7608820

De Cuserstraat 91
1081 CN Amsterdam