Coronavirus (COVID-19) - employment issues in the Netherlands

Everyone will be aware of the far-reaching impact of the coronavirus (COVID-19). For companies located in the Netherlands, operating either nationally and internationally, the virus may not only lead to issues in relation to the trade of goods, but it may also cause a need (or necessity) for employers to consider (preventive) measures in the workplace to meet their duty of care. Below we set out some important aspects for employers to take into consideration.

From 25 March

Deferral of employers' pension contributions possible

Pension administrators are going to help companies who are in acute difficulties due to the corona crisis as much as possible if they experience problems in paying the pension contributions without affecting the rights of employees. This has been agreed by the Labour Foundation and the central organisations of pension providers, the Pension Federation and the Association of Insurers.

The delay in collecting pension contributions can be done in different ways; the extent of the problems varies from sector to sector. An employer can make a payment arrangement with his pension provider, funds and insurers can be more lenient with the collection of overdue premiums, or the payment period for an entire sector can be extended.

For employers, the pension contribution is a large part of the wage costs. Usually it is 20 to 25 percent of an employee’s base salary. For the time being, it only concerns deferral of premium payments. Employees' pension rights continue to accrue.

Companies that have acute problems paying their pension contributions are advised to consult the website of their pension provider and, if necessary, to contact their pension fund, insurance company, premium pension institution or their financial advisor.

The proposed measures can be implemented quickly, partly in anticipation of the government's announcement of 'Temporary emergency bridging for job retention'. This emergency measure, which has yet to be implemented, is to a large extent intended to help employers with problems meet their wage costs. It is expected to include a contribution towards the employer's pension contributions.

From 18 March

The Government introduces measures to protect jobs and the economy – see here for more information.

From 17 March 2020

Emergency leave

Under Dutch law, emergency leave is paid leave for a short period of time, to be calculated on an equitable/fair basis. This leave is meant to find a solution for the care of the children and normally max. a few days. However, given the exceptional situation around Corona and the fact that the employees will (most likely and due to governmental rules/advices) not be in a position to find a solution for the care of their children, this leave can/should -- in our view -  be for a much longer period than a few days and it will not be fair to limited this leave to a few days in this special situation.

At this moment, the Dutch government has not introduced any new legislation (yet) in relation to the exceptional situation around Corona and the possibilities for employees to take leave. We will keep you informed in this respect.

Finally, the government has recommended to let employees work as much as possible from home. Therefore, we advise you to explore the company's possibilities in this respect.

Reduced working hours (werktijdverkorting)

If a company meets certain conditions, it can apply for a permit to reduce the employees' working hours (Aanvraag werktijdverkorting). The permit must be applied for at the Ministry of Social Affairs and Employment (the Ministry). The company should apply by completing an online form in Dutch. Please find the link to the relevant form.

It is in the Ministry's sole discretion to grant the permit and if the permit is granted, employees whose working hours have been reduced will receive unemployment benefits for the hours they no longer have to work. The company will receive the unemployment benefits directly from the Dutch unemployment agency (governmental body called the UWV) and it can subsequently use these benefits for the payment of its employees' salaries. The employees will remain fully employed and entitled to their current wages but due to the unemployment benefits received from the government, the salary costs will reduce for the company.

The permit will be valid for a period of 6 weeks and the permit does not reduce any working hours prior to the date on which the application for the permit was received by the Ministry. If the company's situation does not improve, the employer can apply for a renewal of the permit (with in total a maximum period of 24 weeks).

Requirements

The company can only ask for a reduction of the working hours of its employees and not for any agency workers, on-call workers, consultants etc. When applying for a permit the company will have to comply with the following strict requirements:

• the company has been affected by an exceptional situation (such as corona) that does not fall under the normal entrepreneurial risk (such as normal economic circumstances). The company will have to substantiate the direct and clear link between Corona and the reduction of the work load and the need to reduce working hours; and

• the company expects a decrease of the workload of at least 20% for a period of 2 up to and including max. 24 calendar weeks. The 20% reduction in work is considered per legal entity and not per department, division or employee.

In any case, no permit shall be granted:

• for periods prior to the date on which the application for exemption is received by the Ministry;

• to the extent that the number of staff is not commensurate with the company's reasonably foreseeable requirements;

• if the reduction in work is related to a strike.

Obligations towards the UWV

The employer must report the receipt of the permit directly to the UWV. Please see further information here.

After the notification and at the end of the permit period, the company can apply to the UWV for unemployment benefits for its employees, by completing the form 'Application for unemployment benefits in case of reduced working hours' (Aanvraag WW-uitkering bij werktijdverkorting). Please see here for further information.

If employees meet the conditions and are eligible for unemployment benefits, the unemployment benefits will be paid by the UWV to the employer. Please note that the unemployment benefits amount to 70% of the employee's salary, whereby this salary will be capped to the maximum daily wage. In other words, the monthly unemployment benefits amount to max. €3,338  gross a month (70% of €4,769).

From 24 February 2020

Duty of care towards employees

As a good employer and on the basis of the Working Conditions legislation, Dutch employers are obliged to ensure a safe and healthy workplace and to take appropriate precautionary and protective measures to prevent illness among their employees. This means that employers would do well to obtain enough information about the outbreak of the coronavirus and government measures (potentially) taken. In addition, the employer will have to protect its employees against a possible infection and spreading of the virus through work. Contamination can take place in several ways, including through work trips, holidays of employees, colleagues who have been to China or through contact with third parties or consultants who have been hired and have been infected. Depending on the type of work carried out within his company, the employer will have to take sufficient and adequate measures to prevent (further) contamination of his personnel.

As an employer, it is therefore advisable to identify and asses the company-specific risks – perhaps in consultation with the works council and the Occupational Health and Safety Service – and any measures to be taken to prevent contamination or spread.

In that context, it is worth considering asking all personnel in writing to indicate whether they have booked a (working) trip to China in the coming months, have recently been to China, or (as far as they can tell) have been in contact with someone who has recently been to China or someone who is (possibly) infected with the coronavirus.

Finally, employers can also seize this opportunity to ask employees whether their emergency contact persons and their contact details provided to HR are complete and up to date.

Medical test versus right to privacy

The question arises whether the employer can measure the body temperature of employees to determine whether someone has a fever and is therefore possibly infected with the coronavirus. Based on the General Personal Data Regulation (GDPR), employees cannot be medically tested unless, given the specific nature of the employee’s job, there is a necessity to perform this test or to be otherwise informed of the medical situation of the employee – which will generally not be the case. In addition, employees cannot be subjected to a medical test on a voluntary basis either, because in employment relationships the consent given would not be deemed voluntary because of the hierarchical relationship between the employee and employer. The employer will therefore have to use other means to find out whether employees may be infected.

Working from home

If an employee has (possibly) been in contact with carriers of the coronavirus, it may be advisable not to allow the employee to work at work for 14 days.

While, strictly speaking, employees have a legal right to come to work, the employer likely has sufficient compelling reasons to enforce working from home in the event of a suspicion or possible infection with the coronavirus. As a result, the employee can be denied access to work if he or she does not cooperate voluntarily. It goes without saying that the employee remains entitled to his or her usual wages. This may be different in the case of illness; once an employee has been infected with the coronavirus, the legal rules regarding illness apply.

To be able to work from home, the employee should have sufficient resources to be able to do his or her job properly, such as access to a computer, possibility of printing, a workplace, possibility to login to the digital work environment, etc.

Therefore, it may be advisable to assess whether all employees are able to properly work from home.

Consequences of non-compliance with duty of care

If a breach of the duty of care is established, significant fines may be imposed not only by the Labour Inspectorate (Inspectorate SZW), but in serious cases also by the criminal court. To be held criminally liable, it is sufficient that the employer should reasonably have known that a danger to life or serious safety threats to employees could arise or were to be expected. Given the extensive (international) coverage about the coronavirus and its contagiousness, it is advisable for employees to take the required preventive measures to protect their employees. Thus far the Dutch government has not issued any advice to employees.

Furthermore, employees should take into account that employees who have become ill at work due to the employer's failure to take (timely) precautionary measures may submit a claim against them.

Further information to help employers deal with the outbreak of the coronavirus across our international network available here