The outbreak of Novel Coronavirus (COVID-19) has now been confirmed as a worldwide pandemic and the World Health Organization has declared that this is a public health emergency of international concern. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
At the time of writing, (7 May 2020) there are several specific state-induced mandatory obligations for certain employers in respect of COVID-19:
- Primary schools and childcare centres should be closed until 11 May 2020. In the period leading up to 11 May, they will, however, remain open for children of parents working in crucial sectors (e.g. healthcare, emergency services, public transport, et cetera). As from 11 May 2020, classes will be divided into halves to limit class size and, accordingly, children will resume physically attending school for approximately 50% of regular hours. Childcare centres will resume ‘business as usual’;
- All hair salons, nail salons and other businesses delivering services in the field of beauty care / external care where close contact between individuals in unavoidable should be closed until 11 May 2020. As from 11 May 2020, such business may re-open, albeit that social distancing rules should be observed as much as possible (keeping 1.5m distance) and provided that such businesses work by appointment and upon conducting a quick survey with the customer to check whether he/she has symptoms of COVID-19 (certain restrictions in respect of paramedical services, e.g. physiotherapy and dentistry, have been lifted already);
- All secondary schools should be closed until 1 June 2020;
- All bars, cafés, and restaurants should be closed up until 1 June 2020, with the exception of takeaway restaurants. As from 1 June 2020, it is anticipated that these businesses may re-open, provided that social distancing rules will be observed (keeping 1.5m distance) and that no more than 30 people stay on the premises, which includes staff (as from 1 July 2020: 100 people). Terraces may also be re-opened provided that social distancing rules will be observed (keeping 1.5m distance);
- Cinemas and cultural institutions should be closed until 1 June 2020. As from 1 June 2020, it is anticipated that these businesses may re-open, provided that social distancing rules will be observed (keeping 1.5m distance) and that no more than 30 people stay on the premises, which includes staff (as from 1 July 2020: 100 people);
- Museums should be closed until 1 June 2020. As from 1 June 2020, it is anticipated that these businesses may re-open, provided that they sell tickets upfront to control visitor streams and that social distancing rules will be observed (keeping 1.5m distance);
- Gyms, saunas, sex clubs, coffee shops and casinos should be closed until 1 September 2020, albeit that coffee shops are allowed to stay open for collection of orders. As from September 2020, it is anticipated that these businesses may re-open, provided social distancing rules will be observed (keeping 1.5m distance);
- All events that attract large crowds (e.g. sports matches, festivals, et cetera) must be cancelled until 1 September 2020, but certain exceptions apply e.g. funerals and church weddings. As yet, the government has not decided whether these restrictions will be lifted from 1 September 2020, with the exception of professional football which will be permitted from that date, albeit that spectators are not allowed to attend the matches;
- All shops, markets and public transport services that do not take sufficient measures to ensure that customers comply with social distancing regulations (see below) on their premises (e.g. by applying a door management policy) must be closed.
At the time of writing (7 May 2020), the Dutch government and the National Institute of Public Health and Environment (RIVM) are advising to work from home if possible. Employers should consider this to be an obligation to facilitate employees to work from home (if possible).
Additionally, the Dutch government and the National Institute of Public Health and the Environment (RIVM) are advising (among other things):
- • if an infection is suspected, the person in question must be isolated at home or in a hospital.
- to stay home, if you have a cold, a cough, fever or a sore throat;
- to stay home, if a member of your household (1) has a cold and/or a cough, and (2) develops a fever or stuffiness. Exceptions apply for people working in crucial sectors (e.g. healthcare, emergency services, public transport), provided that they are not sick;
- to only leave the house for work (if working from home is not an option), grocery shopping, taking care of someone, and to exercise and/or get a breath of fresh air. These activities should not be undertaken in groups;
- to receive no more than three visitors to your home;
- to keep at least 1.5 metres’ distance from each other (‘social distancing’);
- to work from home, if possible, or (as an alternative) to work in shifts to avoid as much contact with others as possible, if possible;
- avoid gatherings of more than three people;
- for vulnerable people (the elderly and those with weakened immune systems): avoid public transport;
- to only use public transport if strictly necessary and to wear (non-medical) face masks on public transport (mandatory from 1 June 2020); and
- only travel abroad if essential.
Additionally, employers should ensure that they are taking any necessary steps to protect their employees. Under the Dutch Working Conditions Act and the Dutch Civil Code, all employers have generic health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and ensure that working practices do not create undue risks to employees. The extent of such obligations is to some degree vague and depends on the (developing) situation.
Under the generic health and safety obligations, employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection at the workplace. Employers should enforce ‘social distancing’ at the work floor (1.5m distance between employees). Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on actions employees can take to help stop viruses like coronavirus spreading. Such advice may include:
• Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze;
• Put used tissues in the bin immediately;
• Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available;
• Try to avoid close contact with people who are unwell.
We further recommend notifying employees where they can access more information if they are concerned.
Can employers request or require information from an employee about potential or actual exposure to the virus?
In the Netherlands, an employer may instruct an employee to see a company doctor if there are legitimate grounds (such as the employee having a fever). Although an employer can require an employee to see a company doctor, they cannot physically force them to do so. Having said that, failing to follow such an instruction may result in disciplinary action.
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer, sits firmly at the nexus between data privacy and employment.
Any such data must be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is experiencing any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country.
On 20 March 2020, the EDPB (the European data protection advisory body, formed of representatives of national data protection authorities) published a formal statement in relation to COVID-19. In relation to whether an employer can disclose that an employee is infected with COVID-19 to their colleagues, the EDPB advises that this should be done only where necessary (e.g. in a preventive context) and where national law allows this. In such case, the concerned employees shall be informed in advance and their dignity and integrity shall be protected.
In the Netherlands:
- The processing of 'health data' by employers is highly restricted.
- Employers could seek to rely on an exemption to this restriction for preventive or occupational medicine under art. 9(2)(h) GDPR together with art. 30(3) of the Dutch Implementing Act GDPR (Uitvoeringswet AVG, UAVG).
- However, this exemption may only apply to (i) social services / healthcare workers, institutions or facilities, or (ii) insurance companies. Employers cannot rely on this directly.
- It may be possible to have a company doctor or occupational health and safety service (arbodienst) ask employees health related questions under this exemption.
Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site. In such cases, it should be explored whether there is a legitimate interest in requesting employees to provide their travel information for this purpose.
Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required, particularly as the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.
What should employers do if an employee is absent or infected?
If an employee has been diagnosed with or is suspected to have contracted the virus, then the employer will have reasonable grounds to request them to stay at home. It is probable that this employee would be quarantined regardless. Employees will be entitled to paid sick leave as per contractual terms or, absent those, statute.
Refusal to work or attend work
Employees can refuse to attend work if they have a 'legitimate and concrete concern' (of contracting or spreading the virus). This will vary from one situation to another and will depend on the level of escalation of the virus, but the employee cannot simply refer to the general national circumstances. Rather, the legitimate or concrete concern must directly relate to (i) the (physical) work environment; and/or (ii) the use of necessary means of (public) transport to attend work; and/or other personal circumstances (e.g. the employee’s spouse is a medical doctor).
This may also be affected by the necessity of the employee attending the regular workplace, for example, ‘vital professions’ are generally expected to continue their activities. In contrast, if the employee can perform his duties at home, it is more likely that their concern should be considered ‘legitimate and concrete’.
What are employers' obligations where offices are partially or fully closed?
There is no obligation for an employer to close its facilities where, for example, the Government has closed some its own departments. However, employers should take whatever measures are reasonable to mitigate the spread of the disease and keep employees safe. We have seen a marked increase in companies closing their physical locations (mainly shops) voluntarily, i.e. without any specific government order to do so.
If the employee cannot perform his/her duties for reasons relating to the COVID-19 virus (other than being sick), prima facie the employee shall remain entitled to pay, but this is a grey area and very much in flux. There is no case law yet giving any specific guidance. One of the factors will likely be the extent to which the employer controls the reason for not performing duties (e.g. voluntary shut down). Conversely, in the event of a state-induced mandatory shut down, it is perceivable that the company would not be obliged to continue paying salaries. The answer to this question will also depend on whether the employer qualifies for NOW compensation (see below).
What measures have been taken to support employers during this crisis?
Reduction of working hours arrangement abolished
The Dutch government announced several measures to support companies during this crisis. Earlier, employers had the option of applying for a permit to reduce the working hours within the company. The government, however, abolished that arrangement with immediate effect on 17 March 2020, as part of emergency legislation.
In substitution of the abolished ‘hours reduction’ scheme, the government adopted the “Temporary Emergency Bridging Measure for Sustained Employment” (Tijdelijke Noodmaatregel Overbrugging voor behoud van Werkgelegenheid) (“NOW”), offering companies an aid package aimed at compensating employers’ wage costs (rather than a scheme allowing the reduction of working hours).
The below information is a very high-level overview.
To qualify for NOW-compensation, the following conditions apply (among others):
- a decrease in net revenues of at least 20 per cent in a consecutive three month period between 1 March 2020 and 31 July 2020. The revenue during this three month period must be at least 20 per cent lower than 25 per cent of the companies' annual net revenues in the 2019 calendar year (i.e. representing revenue over a three month period). We note that the decrease in revenues may need to be assessed at group-level for companies that are part of a group;
- the employer should keep the level of wages equal during the compensation period (we believe that this is a rather vague way of saying employers should continue paying the employees’ wages);
- the employer should use the compensation only for the purpose of continuing paying the employees’ wages;
- the employer shall not resort to dismissal of the employees on economic, technological or organizational grounds (during the period for which the employer receives compensation);
- the employer should inform the Works Council or Personnel Representative Body of its intention to submit a NOW application (or, absent any of such bodies, the Town Hall).
If the request for compensation is granted, the employer will receive compensation for up to a maximum of three times the actual employers’ wage costs incurred in January 2020, including a surcharge for social security contributions and pension contributions. Compensation will thus be given for a three month period (initially). The actual level of compensation will depend on the level of the drop in revenues:
- if revenues drop by 100 per cent, employers will be compensated for 90 per cent of the employers’ wage costs; and
- if revenues drop by 50 per cent, the employer will be compensated for 45 per cent of the employers’ wage costs (i.e. the level of compensation of employers’ wage costs is equal to 90 per cent of the per centual drop in revenues).
Compensation for each individual employee’s wage is capped at EUR 9,538 (gross) per month. Further, if the employers’ average wage costs per month during the compensation period is less than the employers’ wage costs in January 2020, the level of compensation will be reduced by the decrease in employers’ wage costs. Lastly, if the employer does not fully meet its obligations under the NOW scheme, their application may be rejected (to the extent relevant, with retro-active effect) or a lower entitlement to compensation may be provided (e.g. in case the employer petitions the Employment Tribunal for permission to issue notice of termination on economic, technological or organizational grounds).
The government will make an advance payment for 80 per cent of the estimated amount of compensation based on the expected/forecasted drop in revenues and the employers’ actual wage costs in January 2020, to be paid in maximum three instalments. After expiry of the period for which the NOW compensation has been granted, a final settlement will be made, and any remaining compensation will be paid (if applicable). The level of the remaining compensation – if any – will depend on (among other things):
- the actual drop in revenues compared to the expected/forecasted drop in revenues;
- the employers’ average wage costs per month during the period for which the employer receives compensation, compared to the employers’ wage costs in January 2020;
- whether or not the employer met all other conditions under the NOW scheme (e.g. did the employer petition the Employment Tribunal to dismiss employees on economic, technological or organizational grounds?); and
- submission of a statement by an (external) auditor on the actual drop in revenues.
Compensation will be granted for three months initially, with the option for a further three months’ extension. Such further extension may be subject to further (yet to be published) conditions.
Any applications made (but not yet granted) under the abolished ‘working hours reduction’ regulation shall be converted into applications under the new regulation.
Applications can be submitted to the Institute for Employee Benefits Schemes (UWV) up to 31 May 2020 through an online portal: click here (in Dutch).
Compensation for entrepreneurs in affected sectors (TOGS)
On 27 March 2020, the government launched a scheme to support specific sectors affected by the government’s COVID-19 measures. The below information is a very high-level overview.
Whether or not a company is in a relevant sector will be assessed by a special industry-code (SBI Code), which can be found in the Trade Register of the Chamber of Commerce. The list can be found here.
Companies in the relevant sectors may receive a EUR 4,000 grant, provided that, in the period from 16 March 2020 up to and including 15 June 2020:
- the company expects to suffer a loss in revenues of at least EUR 4,000 due to government measures; and
- the company’s fixed charges exceed EUR 4,000 (after deduction of any other compensatory measures for which the company may be eligible, e.g. the NOW scheme).
To be eligible, the company must not employ over 250 employees and/or have received over EUR 200,000 in government subsidies. Entrepreneurs who work from home will also not be eligible.
The TOGS scheme enters into force with retroactive effect from 27 March 2020. Applications can be made up to and including 26 June 2020, through the Netherlands Enterprise Agency, RVO: https://english.rvo.nl/coronavirus.
The government has also announced several other measures aimed at supporting companies, including allowing companies to postpone tax payments and enforcing an already existing contingency fund which supports companies with difficulties in opening credit lines.
Where can employers and employees access local and national advice?
Last reviewed: 7 May 2020