1. Emergency Measures
Decrees, orders or guidelines in effect and pertaining to reopening facilities.
- All measures concerning COVID-19 are laid down in emergency decrees, which allow our municipalities to safeguard the public order. These emergency decrees for example regulate the reopening of companies concerning contact professions (11 May), restaurants (1 June), primary schools (8 June), and gyms (1 July). They also imply the measures to be observed by the facilities. Any facility that reopens has the obligation to safeguard 1,5 meter distance between people as much as possible. The emergency decrees empower the authorities to fine citizens who do not adhere to the rules.
- The Dutch Minister for Welfare, Public Health and Family has recently drafted a special emergency corona law. The law is scheduled to come into force on July 1 2020.
Optimal approach to keep track of the latest updates.
2. State Aid
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
- Companies and entrepreneurs (as defined for income tax purposes, which includes self-employed consultants) are permitted to apply for tax deferrals in light of the COVID-19 pandemic. As soon as a company has filed its request (which is possible after receiving a tax assessment), the Dutch tax authorities will defer collection of tax. This applies automatically, to all income tax, corporate income tax, wage tax, Social Security contributions and VAT assessments for a period of three months. Penalties relating to deadlines set before a deferral was granted will not have to be paid. These deferrals of tax by the Dutch tax authorities also apply to Social Security contributions.
- Self-employed professionals can apply for a support package. They can apply for a special loan and a three-month subsidy. This subsidy is called the Temporary bridging measure for self-employed professionals (Tozo). For the requirements check the Government website.
- The most important subsidy for employers is the NOW-subsidy. Employers can claim NOW for a substantial compensation of their wages, if they are dealing with a turnover decrease. NOW 1.0 was initially introduced for the months March, April and May 2020 and is extended with NOW 2.0 for the months June through September 2020. The NOW 2.0 can be applied for from 6 July 2020. The requirements can be found on this
3. Health and Safety Measures
Requirements mandated by law or any official guidance.
- An employer has a statutory duty of care, to offer employees a safe and healthy work environment. In the current times in which employees could be at risk of infection, this duty of care can imply to inform employees about hygiene measures such as washing hands, using paper towels, coughing in their elbow and to refrain from shaking hands.
- Another important obligation is to keep 1,5 meter distance from one another and the measures that prohibit any types of gatherings, which also must be observed in work environments. These requirements are now laid down in a temporary emergency decree, but might be adopted by the act of July 1 (see question 1).
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
- Employees and employers are requested to work from home as much as possible, unless they perform vital occupations like healthcare. This is only advised not mandated, so it is not legally binding and cannot be enforced by law. Nevertheless it is implemented in most companies. Face masks are not obligated, except when using public transport. Most employers provide disinfectant hand gel and additional cleaning measures such as frequently cleaning handles. The rules of keeping 1,5 meter distance and no gatherings still need to be abided by. To guarantee this, some companies make use of a special schedule to make sure that not too many employees are in the workplace at the same time.
Policies and procedures for telework once the business reopens.
- The advice from the Government to work from home, will be valid at least until 1 September 2020. Under the Dutch Working Conditions Act, an employer must ensure that an employee has an ergonomically sound workplace. An employer must provide the correct work equipment, such as an ergonomic chair, desk and/or keyboard. This obligation also exists when employees work from home, except when employees only work from home incidentally.
- The Dutch Data Protection Authority has not yet disclosed its opinion about the matter of monitoring employees at home. It is likely that this is not allowed without notifying them prior. Also the employer will need a legitimate reason for monitoring and the monitoring needs to be necessary. A legitimate reason could, for example, be abuse of the internet or e-mail use. The necessity means that software may not be used to check whether an employee is sitting at his computer.
5. Managing COVID-19-Related Employee Issues
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
- Whenever an employee gets infected, his leave is considered sick leave. The employer must pay at least 70% of the salary. Whenever one person of a household gets ill, the whole household needs to stay in quarantine, until everyone is free of symptoms for 24 hours.
- If an employee takes necessary care of a sick family member, the employee is entitled to short-term care leave. This short-term care leave amounts to twice the number of working hours per week within twelve months. During this leave the employer must pay at least 70% of the salary.
- There is an ongoing discussion about whether an employer needs to pay the salary of an employee that is not sick, but is quarantined and cannot work. The main rule is that an employee has the right to his salary, even when he is not working, unless it is caused by something that the employee is accountable for (which is rarely the case). Whether it is something that the employee is accountable for, will have to be determined on a case-by-case basis.
Employees who fear infection and refuse to work.
- An employee cannot refuse to go to work because he fears infection. The employer can try to minimise the fear by pointing out all measures that they have taken to prevent contamination. If the employee still refuses to come back to work, the employer can give the employee a warning and indicate the consequences if he does not appear at work, which could be to stop continuing to pay wages.
Disclosure of employees who are infected.
- The employer doesn’t have to inform the authorities in any form regarding an infected employee.
- The EU General Data Protection Regulation prohibits an employer from keeping track of employees that are infected with corona. An employer can only record the fact that an employee is ill, but not any other circumstances. This Act also prohibits the employer from informing other colleagues about the illness of the specific employee.
6. Cost-Reduction Strategies
To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each?
It is not possible to oblige an employee to take unpaid leave. Referring to question 7, it will usually be considered paid sick leave or paid short-term care leave.
In the Netherlands, there are 3 ways to alter the terms of employment (such as the salary):
- With the explicit consent of the employee;
- By using the so called “unilateral changes clause” that was agreed upon in the employment agreement, employee handbook or collective bargaining agreement. With such a clause, the employer reserves the right to change the employment contract unilaterally if the importance to the employer if doing so is so great as to outweigh, by the standards of reasonableness and fairness, the employee’s interests which are harmed by the changes. It is possible that the circumstances due to COVID-19 could lead to such importance to the employer. However salary reduction is generally not permissible, which is confirmed in recent case law.
- In the absence of such a clause, a unilateral change can be reached if the employer makes a reasonable proposal which the employee (acting as a “good employee”) can not refuse. It is possible that circumstances due to COVID-19 can lead to such a reasonable proposal , but still salary reduction is generally not permissible.
Financial problems due to COVID-19 can lead to redundancy. This can be reasonable ground for dismissal on poor business conditions. Employers who make use of the NOW-subsidy, will be suspended from their subsidy if they terminate employees during the same time period.
Financial problems due to COVID-19 can lead to facility closures. This can also be a reasonable ground for dismissal based on poor business conditions.
7. Best Practices
Tips, recommendations and common pitfalls.
- Employers should be aware of their obligation to continue to pay salaries even when the employee isn’t working due to COVID-19-circumstances. Unless the employee is accountable for not being able to work. This is rarely the case.