Never before have so many people worked from home in the Netherlands as now, as a result of the coronavirus. This does not appear to be entirely temporary. ANWB research shows that 60% of workers want to keep two or more working-from-home days after the crisis. In addition, more and more organisations indicate that they are structurally introducing working from home. Even when working from home, employers have an important obligation to offer every employee a safe and healthy workplace under the Working Conditions Act (Arbowet). However, the rules of the Working Conditions Act are not tailored to working from home. This raises a lot of questions. Does the employer, for example, have to bear the costs of a healthy home workplace? Must the employer pay an allowance for extra costs incurred by the employee as a result of working from home (a home-working allowance)? And is the employer responsible for accidents in the home workplace? We answer these questions in this blog.

Who bears the cost of setting up the home workplace?
According to the Working Conditions Act, an employer is required to ensure good working conditions. This also applies to home workplaces. The employer is responsible for ensuring that a home workplace meets the requirements set. In doing so, it does not matter whether the employee is required to work from home or does so at their own request. The costs of meeting the requirements may not be borne by the employees, according to the Working Conditions Act.

In practice, this means the employer has to foot the bill for setting up the home workplace. Think here of essential (office) items, such as a desk and an office chair. If an employee already has a workplace at home that meets all working-conditions requirements, then it is of course not necessary for an employer to incur additional costs. It can happen that an employee prefers to use other (more expensive) items for working from home than those made available by the employer. If these meet the requirements of the Working Conditions Act, that is not a problem. The employer does not, in principle, have to pay for those other items, since it is not the intention that an employee unnecessarily runs up costs for an employer.

The employer’s responsibility, however, does not go so far as to require them to purchase air conditioning for home workers. The employer must ensure a safe working environment, but is not obliged to provide a cool home workplace, as is also evident from statements by the employers’ association AWVN and trade union FNV.

May an employer reimburse costs tax-free?
In principle, an employee must pay tax on the wages he receives from his employer. This also applies to products given, such as a Christmas hamper or an office chair. However, the work-related costs scheme (werkkostenregeling) provides that, in 2020, an employer may reimburse 1.7% of the total wage bill up to 400,000 euros tax-free to its employees. If the employer has a total wage bill higher than 400,000 euros, then 1.2% of the wage bill above 400,000 is added to this amount. The 1.7% of the total wage bill up to 400,000 euros, together with the 1.2% of the wage bill above that (if applicable), is called the free space (vrije ruimte). Christmas hampers, gym memberships and other extras are often paid for out of the free space. Watch out! If, as an employer, you exceed the free space, you must pay 80% tax on the amount by which the free space has been exceeded.

In addition, there are also the so-called ‘targeted exemptions’ (gerichte vrijstellingen), which may be given tax-free without counting against the free space. An example of this is the travel allowance that employers may give tax-free to employees who travel to their work. This allowance is capped at 19 cents per kilometre.

Then there are also products that are necessary for carrying out the work, such as smartphones in some cases. As an employer, you must be able to demonstrate that the provisions are necessary for proper business operations. This, too, may then be given tax-free, even if the employee partly enjoys private benefit from it. This therefore also applies to the aforementioned setting-up of the home workplace.

Finally, there are also the nil valuations (nihilwaarderingen). This applies to biscuits and cups of coffee, but also to the gas, water and electricity at work. The value of these is so small that no payroll tax needs to be withheld on them either. The employer may offer this tax-free at work, but the employer may, in principle, not reimburse it tax-free when working from home. This is only allowed if the (home) workplace also genuinely counts as a workplace for tax purposes. That is the case when the following conditions are met:

• The space is a self-contained part of the home: the room has, for example, its own entrance and its own sanitary facilities;
• The employer has a genuine (business) rental agreement with the employee, so that only the employer has the use of the space;
• The employee works in that space.

In almost all cases, this therefore does not apply if your employee is working from home as much as possible because of the coronavirus measures. In that case, a reimbursement for the workplace must come from the free space. There is good news about this: the free space in 2020, as a result of the coronavirus, has been increased to 3% over the first 400,000 euros of the total wage bill, instead of 1.7%.

Fixed home-working allowance.
An unintended favourable effect of working from home for employers is that it removes some costs. Think here, for example, of energy, lunch, water/coffee/tea and other supply costs. The employee, on the other hand, will have to bear (part of) these costs themselves if they work from home all day. Nibud has calculated that this would even cost full-time home workers on average more than 500 euros a year. As an employer, you can choose to reimburse these expenses to the employee.

As indicated above, it is difficult to meet the tax authorities’ strict workplace conditions. Any home-working allowance will, in most cases, also have to come from the free space. In Belgium, this is different. Employers there may give staff who work from home due to the coronavirus crisis a tax-free allowance of up to 126.94 euros per month. Who knows, the Dutch government may follow this initiative in the future.

Liability.
Every employer bears employer’s liability for workplace accidents. In principle, the employer is liable for personal injury suffered by an employee as a result of an accident during working hours. It may sound strange, but a workplace accident can also occur at home. Only accidents resulting from an activity that has absolutely nothing to do with the employment contract are not covered by this. This is the case if the accident could never have happened at work. Falling down the stairs, and even being hit by a car on the way to the bakery (for lunch), are therefore covered, but, for example, injury sustained while mowing the lawn during working hours is not.

The employer is also liable for material damage to, for example, the company laptop or mobile phone, unless the employee caused the damage intentionally, was negligent, or acted with conscious recklessness.

New regulations?
Working from home cannot be stopped. This trend, which also has many positive points in terms of the environment, was already on the rise, but has received a boost from the coronavirus crisis. The (tax) legislation, however, has not yet been adapted to this. In practice, the call for, for example, a tax-free allowance for actual commuting travel and a tax-free home-working allowance is growing louder. Now that working from home can no longer be dismissed, it is only a matter of time before the regulations are adapted accordingly.

Questions or advice?
The corporate legal advisers at The Legal Company specialise in employment law. If, in light of the above, you have any questions or would like legal advice, please contact us by emailing info@thelegalcompany.nl, calling 020-3450152 or by filling in our contact form.

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Nothing changes as often as laws and regulations. We would like to point out that our blogs may no longer be in line with current laws and regulations and may therefore be outdated. If you have questions or a problem relating to this blog, or if you require legal assistance, please contact us.