Same law, different lawyers
26 May 2020

Return to work: Guidelines for Dutch employers

This month, the Dutch government has announced a step-by-step plan in order to ease the current COVID-19 restrictions, provided that the COVID-19 contaminations will not increase.  Whilst the advice remains to work from home as much as possible, there is room for returning to work.  How to prepare the work place for the return to work?

Preparing the workplace 

Under Dutch employment law, an employer is obliged to ensure a safe and healthy working environment*.  This means that an employer must identify and assess the risks and take appropriate measures to prevent the spread of the COVID-19 virus by adapting or updating a plan of action (health protecting strategy) in the hazard identification and risk assessment (risico inventarisatie- en evaluatie).

First of all the current governmental advice is still to allow employees to work from home as much as possible and, if this is not possible, to spread working hours as much as possible.  In any case, employees will need to stay home (and, if possible, work from home) in case of COVID-19 symptoms and/or if one of their household members has COVID-19 symptoms, including a fever or tightness in the chest (benauwdheid).

The employer needs to prepare the workplace in accordance with the guidelines of the Dutch National Institute for Public Health (''RIVM'').  First of all, social distancing (i.e. 1.5 meter distance) needs to be observed in the workplace.  Furthermore, employers will have to inform the employees on how to prevent contaminations and may provide, for example, hand sanitizers, tissues and possibly acrylic partitions.  It is also recommended to perform deep cleaning on a regular basis.  In practice, employers may have to limit the number of people in a workplace by implementing staggered shifts.

On 23 March, the Dutch government has specified that work-related gatherings of up to 100 people can continue to take place provided that social distancing will be observed.  This exception only applies to meetings that are necessary for the continuation of the daily activities of the company and gatherings required by law, such as some shareholders meetings.
 
Please note that the RIVM guidelines are mandatory requirements, the infringement of which may result in sanctions by the Dutch Inspection Social Affairs and Employment (Inspectie Sociale Zaken en Werkgelegenheid).  It depends on the nature of the work place and the work activities which specific measures should reasonably be taken by the employer.  Failure to comply with the RIVM guidelines may also result in liability on the basis of a breach of the duty of care by the employer.

Health checks

In order to guarantee a safe return to work, many employers are considering to subject their employees to health checks, such as a body temperature checks or COVID-19 tests before allowing access to the workplace.  Whilst this may seem useful to ensure safe and healthy working environments, it should be noted that Dutch data protection laws prohibit keeping records of temperature checks by employers.  Similarly, the Dutch data protection laws prohibit employers asking for or recording COVID-19 diagnoses.  Notable exceptions are when these actions are taken by the company doctor, or if the employer is specifically requested to do so by the Dutch health authorities**/***.
 
An employer can also reasonably request an employee to monitor his or her temperature on a regular basis or to contact the company doctor on the employees' own initiative.  But, an employee cannot be obliged to do this or share this information with the employer.  Furthermore, an employer may send an employee home in case the employee concerned appears to have COVID-19 symptoms.

In case of COVID-19 tests being carried out by the company doctor, the company doctor has a notification obligation to report a positive result to the Municipal Health Service ("GGD"), (but this is not an obligation of the employer).  If there is a risk of contamination at the workplace, the GGD may take measures at the workplace based on their protocol (including a temporarily closure of the business location).

Business travel and commuter travel 

As indicated above, the Dutch government has stressed that employers will have to allow employees to work from home as much as possible. Furthermore, the current advice is to only use public transport if necessary and to avoid rush hour.  If an employee is not able to work from home, an employer will first have to request the employee whether or not it is possible to travel to work with his or her own vehicle.  If an employee is only able to travel to the work place with public transport, as of 1 June 2020, the use of non-medical face masks in public transport will be obligatory****.
 
On a side note, enforcing authorities may impose a fine on individual employees when three or more employees (not being a household) travel together (for example, carpooling) in their own vehicle without social distancing.  Therefore, carpooling with more than two employees will not be permitted*****.  In case of transport provided by the employer (for instance busses) infringement of the social distancing rules may also lead to a fine for the employer******. 

Company data 

Experts in the field generally agree that cybersecurity breaches are in particular among the most substantial risks facing companies in 2020.  As employers navigate the challenges posed by safely returning to work, they must not compromise on data security, ensuring that control over company data is maintained.

In relation to company data, it is important to remind employees of policies, particularly those that apply so keeping company data safe and secure.  Remind your employees of the proper handling of confidential business information as they transition back to work.  If your company has sensitive data, for instance personal data, trade secrets, financial information, business plans, or other confidential information, you likely will not want your employees to keep copies of such data on their personal accounts or devices, or dispose hard copies of such data at home.

Business continuity is key.  It is therefore recommend ensuring that the company's incident response protocols are clear to all employees, that incidents continue to be appropriately flagged and escalated as appropriate, and that the incident response team can investigate and communicate effectively both from home and at the office.

Final remark 

If you have any further questions about Dutch employment law, privacy or cybersecurity law, for example, about the Governmental measures, amendment of employment conditions, extension of contracts and reorganisations or cyber readiness, kindly feel free to contact us.

Use our guide to view global governmental, regulatory, and other legal responses to the coronavirus pandemic, compiled and regularly updated by our global team of cross-disciplinary lawyers.  Review national responses on issues including government support and restrictions, the impact on transactions and trading, and the key issues in areas such as employment, data protection and government support, tax reliefs and insolvency.

Click here to see a full breakdown of topics and countries covered.

For more information, please contact Anita de Jong, Maria Benbrahim, Joke Bodewits or Benjamino Blok.

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* Article 7:658 Dutch Civil Code and Articles 3 and 5 of the Dutch Working Conditions Act.
** Please note that the Dutch Data Protection Authority (''DPA'') has indicated that performing a temperature check in itself, and reading the thermometer, do not fall under the scope of the GDPR if those are not registered in any way or otherwise processed through automated means.
*** Following this, some Dutch employers have already implemented body temperature checks by use of 'temperature guns' in shielded rooms.
**** This violation is punishable by a fine of EUR 95.
***** This violation is punishable by a fine of EUR 390 (for persons of 18 years and older). 
****** This violation is punishable by a fine of EUR 4.350.