Same law, different lawyers
06 March 2020

The business impact of the coronavirus from a Dutch employment law perspective

The World Health Organization has declared the outbreak of the Coronavirus/Covid-19 virus a "public health emergency of international concern". Therefore, it is recommended to prepare for the potential impact of the virus.

Preventative measures following from the employer's duty of care

Under Dutch law an employer has a duty of care to provide a healthy and safe work environment for it's employees. Therefore the employer should take measures in order to exclude or prevent the manifestation of Covid-19 virus on the workplace. For example by:

  • informing employees on the symptoms of the Covid-19 virus and what measures they should take to prevent the spread of the virus and update this information on the basis of WHO advices and national and local laws issued to rule on the matter in order to prevent/contain the spread of the virus. In addition the RIVM, (the Dutch National institute for Public Health and the Environment) has published a number of guidelines on its website of measures that could be taken to prevent the spread of the Covid-19 virus;
  • assessing the level of health risks within your company and adapt or update a plan of action (health protecting strategy) on how to deal with the (risk of) infectious viruses in the hazard identification and risk assessment (risico inventarisatie- en evaluatie);
  • providing (additional) hygienic products at the workplace and regular cleaning of communal areas;
  • designating a health contact person that employees can contact with questions in this respect;
  • avoiding business trips to and from identified high risk areas;

The exact (level of) measures that must be taken by the employer depend on the scope and size of the business, and the level of the risks.

Measures in case of (suspected) infection of an employee

Based on subordination, employers can deny employees who have travelled to - or been in close contact with someone from - a high risk area access to the workplace. The employee will, in most cases, be entitled to continued payment of salary.

Alternatively, the employer can require them to work from home (if possible, given the nature of the function) until it is evident that they are not infected. Moreover this would require an adequate home office that complies with the requirements set out in the Dutch Health and Safety Act. The period of time that the employee has to work from home has to be reasonable and proportional. In case no adequate home office is available, the employer can place the employee on non-active service, whilst remaining entitled to full salary and emoluments.

Consequences

Employers who do not take enough adequate measures to prevent the virus being spread in the working environment, or would allow infected employees access to the workplace, can possibly be held liable on the basis of employers' liability. This is also the case if an employer would send an employee to an identified Covid-19 virus -risk area and if the employee contracts the virus.

Covid-19 virus as reason for reduction of working hours

Companies who are facing difficulties, because of a work reduction of the employees as a direct result of the Covid-19 virus, can apply for permission of the Employee Insurance Agency (UWV) for a reduction of the working time of their employees. The company will have to demonstrate a reduction of the work of at least 20% during at least 2 weeks. The permission can be granted for a maximum period of 24 weeks. Some employers in the Netherlands have already used this option to (temporarily) decrease the wage costs significantly. In that case, the employees whose working hours have been (temporarily) reduced will be entitled to unemployment benefits during the hours they have not worked.

Please note the above is only a general overview of the obligations of Dutch employers in relation to the Covid-19 virus. We are available to assist you with preparatory actions or responding to scenarios relating to the Covid-19 virus.

For more information, please contact Anita de Jong.