Many countries have by now opened their borders to holidaymakers. This includes countries that are not yet safe, but that cannot (economically) do without tourism. The government issues travel advice for these kinds of countries by means of a colour-coded system. Click here for the government’s current travel advice. Within the EU, the travel advice for many countries has been changed from ‘orange’ (“holiday travel discouraged, only essential travel”) to ‘yellow’ (“holiday travel possible, be aware of risks”). Even so, we are currently seeing the travel advice for some countries, such as Croatia, going back from yellow to orange. For travel outside Europe, the travel advice for now remains at least orange. Employees who go on holiday to a yellow area are not required to go into home quarantine upon returning to the Netherlands. Employees who visit an orange area, however, are. Can you, as an employer, refuse such holidays? Is there then an obligation to continue paying wages for you as an employer if the employee cannot work from home? What if an employee contracts the coronavirus during the holiday? And what if an employee is on holiday in an area/country that is put back into lockdown? The blog below answers these questions.
For SMEs in the cleaning industry, the blog below is somewhat different. If you are a cleaning-industry entrepreneur, please read our article at trade partner Clean Totaal.
The main rules for holiday requests and continued pay
Employees are entitled to take their statutory (and any additional contractual) holiday days. In principle, these days are scheduled in accordance with the employee’s wishes, which the employee states in his written holiday request. The employer can deviate from such a request if there are weighty reasons against the request. Serious disruption of business operations is such a weighty reason. This is the case, for example, if there would be understaffing after approving the request.
It is conceivable that the coronavirus could also count as a weighty reason. A holiday to an orange or yellow country could possibly lead to having to miss employees for a longer period, due to infection, a lockdown and/or quarantine. For now, however, it is assumed that an employer may not refuse the holiday request solely because of the orange or yellow holiday destination.
The starting point regarding continued pay is that an employee is entitled to wages, unless the inability to work must reasonably be at the employee’s risk. In principle, this means it is the employer who must prove that the risk should reasonably fall on the employee.
TIP: In connection with this, it is therefore important that the employee states their holiday destination in the written holiday request. As an employer, you have a legitimate interest in requesting this private information, because you are responsible for ensuring a healthy and safe working environment.
Yellow travel advice
If an employee goes on holiday to a country with a yellow travel advice, it is advisable to point out the government advice to the employee in writing: staying in the Netherlands is best. If the employee contracts coronavirus and becomes ill during their holiday in that country with a yellow travel advice, they must report sick. It is important that the sickness absence policy sets out proper rules regarding sickness absence during a holiday, whether at home or abroad. For example, it is important to have rules that the employee must provide their nursing address (abroad) and also arrange for a doctor’s statement from a BIG-registered doctor or a comparable local expert showing the incapacity for work. The holiday days are then, in principle, regarded as sick days, provided the employee can no longer enjoy the holiday because of the illness. An employee can also decide to keep the days as holiday days instead of sick days, because otherwise he would only be paid 70% (this therefore depends on the level of continued pay). Continued pay as such cannot be stopped. This most likely also applies in the event that the holiday destination goes into lockdown at the moment your employee is there. This may be different when there were clear signals before departure that a lockdown was imminent. A holiday in the Netherlands (also a yellow country) is not risk-free either; even on a holiday in one’s own country, a (local) lockdown is possible.
Orange travel advice
Despite a negative travel advice, there are still employees who book holidays to countries with an orange travel advice, such as Turkey, Sweden and Bulgaria. Employees are not deterred, because in most cases they travel to those countries to visit family. In principle, an employer cannot prohibit this either, but it is not forbidden to disapprove of the holiday and issue a firm warning about the consequences. A prohibition or a warning of a stoppage of wages during illness due to coronavirus, the lockdown or the quarantine upon return, if the employee goes anyway, does send a clear signal. Always consult a lawyer if you want to give such a warning. How such a warning should be phrased depends very much on the circumstances of the case. After such a warning, an employee certainly has no right to continued pay in the cases mentioned. This is because he knowingly and deliberately ran the risk of quarantine/lockdown/infection. The inability to work is then also at his or her own risk. This also applies to the situation in which, according to RIVM guidelines, the employee must stay home for 2 weeks and you, as employer, also require this. An employer may do this in this case with a view to the safety of other employees and any customers/suppliers/etc.
Yellow turns to orange
It can happen that a yellow country experiences a second wave of coronavirus infections during your employee’s holiday. As a result, the government advice will probably change from yellow to orange. Currently, such a situation is occurring with regard to Croatia. At such a moment, the advice for employees in such a holiday country is: “pack your bags“. If the area goes into lockdown and the employee is therefore unable to work for a few weeks, this risk will probably fall on the employer, who will have to continue paying wages. This could be different if the employee does not follow the advice (“pack your bags“) within a reasonable time. In doing so, the employee is again knowingly and deliberately taking all kinds of risks. So send a warning immediately as soon as this occurs. Have HR keep an eye on this.
Red travel advice
If your employee indicates they want to travel to a red area, the same employer advice applies as for travel to an orange area. Of course, your position as an employer is even stronger in this case. Travelling to a red area is, however, practically very difficult, as most such areas are closed to travellers. Here, for example, you could grant the holiday request on the condition that the employee does not travel to this country but to a safe country, and you could warn of summary dismissal or a stoppage of wages if the employee travels to the “red” country anyway. Once again, consult your corporate legal adviser as soon as such a case arises before sending out a warning. It is an extremely important letter on which your case stands or falls.
The corporate legal advisers at The Legal Company specialise in employment law for SMEs. If, in light of the above, you have any questions or would like legal advice or support, please contact us by filling in this contact form or calling us on: 020-3450152.
Image: © Nederland Wereldwijd – country travel advice 21 July 2020
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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.
