Netherlands: Summary of Recent Labour and Employment Law Developments in 2022

There have been several employment law changes as of 1 January 2022, chief among them: i) introduction of nine weeks paid parental leave; ii) temporary act on widening the use of corona access cards; iii) return regulation for reduction in working hours; iv) tax exemption for home office costs; v) law on more balanced male to female ratio and much more.

I. Employment law changes as of 1 January 2022

As of 1 January 2022, a lot will change in the area of employment law. Paid parental leave will be introduced, the law on a more balanced male to female ratio will enter into force, a working from home allowance and many other modifications will occur. We have listed the most important changes in 2022 in our recent publication on ‘Employment Law Changes as of 1 January 2022’ [1].

II. Employee entitled to salary if unable to work due to homemade fireworks?

The year is almost over and New Year’s Eve is just around the corner. Normally this means that kilos of fireworks are shot into the air. Lighting fireworks is a risky activity, especially when it concerns homemade fireworks. What happens if an employee lights his own fireworks and becomes unfit for work as a result? Is the employee still entitled to continued payment of wages during illness? This question was answered by the subdistrict court of Leeuwarden in early 2021.

This case involved an employee with the position of a tile-layer. In his shed, he was mixing substances to make gunpowder, and ultimately to make his own fireworks for New Year’s Eve. He also this in previous years. During the mixing process, the substances exploded and the employee sustained serious injuries to his wrist and hand, which left him completely unable to work. The employee’s wife informed the employer of the accident and reported him ill.

The company doctor then reported that the employee’s recovery would take a long time. A week later, his employer stopped paying the employee’s salary because, according to the employer, the employee had taken a particularly high risk with his actions which qualified as conditional intent.

Continued payment of wages during illness, unless intentional

If an employee is unable to work due to illness, he is entitled by law to continued payment of 70% of his salary for 104 weeks. An employee is not entitled to continued payment of wages if, among other things, the illness was caused by intent. The intention must be aimed at the occurrence of the inability to work.

Ruling of the court

The court considered that this was not a case of conditional intent (the criminal variant), which already exists if the defendant has acted in a very risky manner. In this case there must be actual intent, which is aimed at the occurrence of inability to work. According to the court, it is not plausible that the employee had the intention to injure his hand and become unable to work, but only intended to create fireworks. Therefore, there is no question of actual intent and the employee is therefore entitled to the statutory continued payment of 70% of his wage.

Reasonableness and fairness

In the event of inability to work, the CLA for the Construction Industry increases the continued payment to 100% and does not provide a regulation which reduces this in a case like the one in question. The employer should therefore, pursuant to the CLA, continue to pay the employee his full salary. However, the judge was of the opinion that, in view of the cause of the inability to work, it could not be ruled out that in proceedings on the merits, it would be ruled to be unacceptable for the employer to continue paying 100%. Therefore, in these preliminary relief proceedings, the wage claim was awarded up to 70% of the salary.

Conclusion

This judgment shows once again that intent aimed at inability to work is only assumed in very specific cases. The requirement of intention is only met if the intention is actually aimed at inability to work. There is, however, a possibility for an employer in a case like this to only continue to pay 70% of the salary. If an employer is obliged to continue to pay 100% during illness (by the CLA or employment contract), an exception can be made regarding the additional 30%. For example, the employment contract or CLA can state that an employee who has become unfit for work through ‘his fault or cause’ is only entitled to continued payment of the statutory 70%.

III. Covid-19 updates

Temporary Act on widening the use of corona access cards

On 22 November 2021, the legislative proposal ‘Temporary Act on widening the use of corona access cards’ (in Dutch: Wet tijdelijke verbreding coronatoegansbewijzen) was submitted. With this legislative proposal, the government introduces the possibility of using the corona access cards at the workplace. The legislative proposal makes a distinction between workplaces where a corona access card is (a) already obligatory for visitors (for example restaurants and museums), and (b) workplaces where a corona access card is not yet obligatory for visitors. The legislative proposal only covers a corona access card that can be obtained on the basis of a 3G access requirement: vaccinated, negative corona test or a corona recovery certificate.

In all cases in which the corona access card is made obligatory, the employer or the person authorised to admit persons to the workplace may only grant access to persons who have an electronic or written corona access card (QR code).

The determination to which sectors the corona access card will apply must take place by ministerial regulation. The designation as a sector requiring corona access card, if it is necessary from an epidemiological point of view. These high-risk situations are generally characterised as environments where keeping a distance is difficult, where people are at a short distance from each other for at least 15 minutes, and/or environments where the air quality is generally poor to moderate. In concrete terms, this means that a corona access card-obligation will not probably not apply to an office environment, but it does apply, for example, to factory environments.

The legislative act is still pending before the Dutch parliament.

To read Palthe Oberman’s publication on Employment Law Changes as of 1 January 2022 [1] in its entirety, click here. The topics covered in this publication include:

Covid-19 Related

• Temporary Act on widening the use of a Covid Pass
• Return Regulation for reduction in Working Hours
• NOW 6 and final calculation NOW
• End of increased discretionary margin

Legislative Amendments

• Law on more balanced male to female ratio
• Lump sum payment, early retirement and leave savings scheme Act
• Directive on predictable and transparent employment conditions
• Normative Regulation on Work-Related Passenger Mobility
• Amendment Foreign Nationals Employment Act
• Collective Act SZW 2022
• Legislative proposal ‘Work where you want’
• Amendment Small Pensions (Value Transfer) Act

Other Developments

• Introduction of nine weeks paid parental leave
• Tax exemption for home office costs
• Compensation transition payment for SMEs
• Adjustment minimum wage
• STAP budget
• Smoke-free working environment