COVID-19 (commonly referred to as: the Coronavirus) is spreading globally. With some anticipating the WHO declaring the outbreak as a pandemic, the severity of the virus and the exponentially increasing number of infected is starting to have material macro-economic effects. The Netherlands have seen a limited number of infections so far. As the situation is still unfolding, this FAQ provides practical guidance to companies employing staff working in or from the Netherlands on how to navigate this new development. This FAQ reflects the situation as of 1 March 2020.
1. What is the nature and extent of the employer's obligation with respect to the Coronavirus
Under Dutch law, an employer is required to take all measures reasonably necessary to avoid exposure to harmful substances or otherwise incur harm at work. Measures that an employer is expected to take depend on the level of available information on the risks. As such, it is important for employers to stay informed on the developments and the official governmental guidance on the matter. Measures that employers should consider are both
- preventive, such as issuing instructions to employees; and
- protective: if the risk of exposure is credible, measures to protect employees should be considered.
2. What concrete steps can an employer consider?
Employers may consider the following measures.
- Depending on the scale of your organisation, consider to put together a task force spearheading the measures that should or could be rolled out. Verify and update your business continuity plans, if necessary. Align measures with the company doctor.
- Stay informed on official recommendations from both governmental sources and the WHO. A dedicated Coronavirus microsite is run by the Netherlands’ National Institute for Public Health and Environmental Protection (RIVM). The Dutch government has also opened a crisis hotline for answering questions regarding the Coronavirus. For current information of European cases, refer to the dedicated site of the European Centre for Disease Prevention and Control. Further detailed background can be found at the WHO site. Below you will find a list of useful links.
- Pro-actively inform employees of developments and measures taken within your organisation.
- Limit or prohibit non-essential business travel, particularly to high-risk areas.
- Be prepared to consider cancelling large work-related meetings or events.
- Consider cross training personnel that perform business-critical functions to ensure your business can continue to operate even when key staff are absent.
- If your company operates various locations, provide local management with the authority to take appropriate actions.
- Remind staff of general recommendations from the RIVM and other organisations (such as the WHO) for personal hygiene. The RIVM recommends performing hand hygiene frequently with an alcohol-based hand sanitizer, to cover nose and mouth with a flexed elbow when coughing or sneezing and to use paper tissues. Additionally, the WHO recommends refraining from touching mouth and nose. Consider providing tissues, no-touch disposal receptacles, alcohol-based hand rubs (including conference rooms) for use by employees and ensure adequate supplies are maintained. Consider to advise employees not to physically greet each other.
- Instruct employees with symptoms of acute respiratory illness such as fever or cough to stay at home. Please see here for WHO guidance on these symptoms. If employees who appear to have such symptoms show up in work, consider separating such employees from other employees and call a healthcare provider or the company doctor for advice.
- Be flexible in requests for teleworking, if the nature of the work allows the employee to work from home.
- If the situation deteriorates, consider staggered working hours and virtual meetings to limit physical interaction, as is currently recommended by the Japanese government. Considering that the outbreak in the Netherlands is currently limited, please consider whether this is a proportionate measure at this time.
- The RIVM currently does not deem it necessary to bar staff from the work place if they have visited areas with outbreaks of the Coronavirus. Depending on your company’s risk profile and assessment, you may however consider requesting staff to work from home if they have visited highly impacted countries in the last 14 days, or if they have been in close contact with a confirmed case of Coronavirus in the last 14 days. Instruct these staff to advise their employer if they develop symptoms during the isolation period. Instruct staff to notify one’s employer on recent or upcoming travel to or from highly impacted countries.
- Ensure a consistent approach and treat similar cases similarly. Consistency in implementation and adherence to whatever measures your company may be considering is key to ensure both practical and legal compliance.
- Face masks are currently not recommended by the RIVM for the general population. In the Netherlands, masks are currently advised for medical personnel and those showing symptoms of the Coronavirus. See also the WHO guidance here. When in doubt, the employer should consult the company doctor if and when protective masks are advisable for the employees.
The steps taken by an employer should ideally be documented to demonstrate that it has fulfilled its duty of care and to be able to successfully counter liability claims.
3. What responsibility does an employer have if an employee is infected with the Coronavirus?
If there are reasonable grounds to suspect that an employee is infected with the Coronavirus (e.g. if the employee shows symptoms) request the employee to be separated from other employees (self-quarantine) and call a health care professional or the company doctor without delay.
If a doctor suspects that the employee is infected with the virus, a strict protocol set up by the Dutch health authorities will come into force. According to this protocol, the employee will have to be put in isolation until the test results are known. If the test results show that the employee is indeed infected, the employee will have to stay in isolation and the employer should not allow the employee to come to work.
If the test is negative, while this person has been in contact with someone who is proved to be infected with the virus, the protocol prescribes that the employee will stay at home (quarantine) for up to two weeks. During this period the employee is refrained from being in close proximity of other people. During this period the employee will be monitored by the Municipal Health Service (GGD). If the employee will not become ill during these two weeks, the employee can go back to work1.
If health professionals confirm that an employee has been infected, verify if the employee has been in contact with other employees or has been at the employer’s premises. If so, employers should consider further measures to protect other co-workers. This should be done in close collaboration with the company doctor and the authorities.
4. Can the employer prohibit an employee from making a private trip to a high-risk area?
The employer cannot prohibit the employee from going to high-risk areas on a private trip. However, an employer can require from employees to advise them on such travels in advance. We also see grounds to require such staff to work from home for period of 14 days after such travels. Employers need to weigh the risk of an individual lodging a claim against its overall duty of care for its staff.
5. Can the employer prohibit an employee from entering the workplace if he fears that the employee has been in contact with persons likely to be carriers of the virus or after having stayed in a high-risk area?
With regard to employees returning from a country where the Coronavirus is active, at the time of this publication, the RIVM advises to prevent the employee from going to work if the employee shows signs of being infected with the Coronavirus within two weeks after leaving the high-risk area. If the employee does not have any symptoms (a combination of fever and respiratory complaints, such as coughing), according to the RIVM (at the timing of this publication) currently it is not necessary to prohibit the employee from going to work2. However, such a request can be made (see Q&A #4).
6. Are employees entitled to a leave of absence if any of their family members catch the Coronavirus?
The employee may be entitled to emergency leave (calamiteitenverlof) or short term care leave (kortdurend verzuimverlof). Emergency leave is intended for employee absence due to private emergency circumstances. Short term leave is intended for employees who have to take care of, for example, their children if they are ill. These types of leave intend to cover short periods of absence and the duration depends on the circumstances. In principle, the employee is entitled to wages. However, specific rules may apply, for example via an applicable CBA or arrangements with the works council or employee representative bodies. Obviously, if family members are infected, the applicable protocols will be activated (test and quarantine).
7. Are employees entitled to continued wages if not working due to an infection with the Coronavirus?
Yes. The regular regime applies, in which staff are entitled to a maximum of 104 weeks of wages during sickness with a statutory minimum of 70% of the last-earned salary capped at the relevant social security amount (maximum daily wage). It is common that this cap is higher under individual employment contracts or collective employment terms. If the employee is not prevented from work due to being sick but because of, for example, quarantine measures, the employee will be entitled to (100% of) his/her usual benefits.
8. Does the employee have an obligation to inform the employer of possible exposure to the virus (e.g. travel to an affected region, contact with a person returning from an affected region, etc.)?
Yes. An employee has a statutory requirement to ensure both his or her own safety and that of its co-workers. An employer may therefore require staff to inform it of any instance in which they may be(come) exposed to the virus.
9. Can an employee refuse to come into work out of fear for the Coronavirus or to have a meeting with people from at-risk countries?
If there are no specific risks at the workplace and the employer has satisfied its duty of care, there is insufficient legal ground for an employee refusing to come into work. The employer has no obligation to respond favourably to unfounded fears. It is important for employers to be transparent on this topic and to provide the employees with up-to-date information in this regard.
10. Can an employee refuse to take a business trip because he or she fears being in contact with persons likely to be carriers of the virus or to have to stay in a high-risk area?
Before organising a business trip, the employer should check with the official sources. For instance, the Dutch Ministry for Foreign Affairs has issued specific guidance on Coronavirus-hit countries. Reference is also made to the LCR and the WHO. If an employee has genuine, fact-based concerns, a refusal to travel is likely to be legitimate.
Useful links for further information
1. https://www.rivm.nl/coronavirus/covid-19/vragen-antwoorden#Waarom moeten Nederlanders
2. https://www.rivm.nl/coronavirus/covid-19/vragen-antwoorden#Waarom moeten Nederlanders
Disclaimer
This publication is provided for general information purposes only and does not constitute legal or other professional advice. This publication is based on governmental guidance regarding the Coronavirus as of 1 March 2020. As the Coronavirus continues to spread, governments may disseminate further guidance relevant to employers. The information in this publication is not comprehensive and does not include all recent developments. Specific advice should always be sought in relation to any legal issue. Allen & Overy LLP does not accept any responsibility for any loss which may arise from reliance on information contained in this document. The reproduction, permanent storage or retransmission of the contents of this document is prohibited without the prior written consent of Allen & Overy LLP.
