The peak of coronavirus infections in the Netherlands appears to be over. The measures are gradually being relaxed and organisations and businesses are slowly opening their doors again. Many fear that a second wave of infections and sick employees will arise. Are you, as an employer, prepared for that? This situation raises pressing questions for employers. Is there, for example, an obligation for the employee to show up at the workplace? When must you report sick employees as sick? What about continued pay if an employee gets coronavirus because of a holiday abroad? Below, we address the 5 most important points to consider.

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.

#1 Obligation to show up at the workplace in times of coronavirus.
Under the employment contract, an employee is of course obliged to come to work in order to carry out the agreed work, since that is what was agreed. That is the place where you carry out and organise the work. Working from home is not an acquired right if it has not been agreed on a structural basis, but has only happened because of the temporary government measures resulting from the coronavirus.

In times of coronavirus, employers can therefore also insist on working at the office and the workplace, as long as they ensure that RIVM guidelines can (and are) being observed. Concretely, this means, for example, that it must be possible to keep 1.5 metres of distance from one another.

Emphasising and repeating the general obligation for employees to show up often has the opposite effect. It is better to communicate that working from home is being lifted and that everyone can come back to the office because it is safe there, given that the RIVM measures are being observed. It is advisable to draw up a protocol setting out the measures the employer is taking and the measures colleagues must observe towards one another.

Despite taking the RIVM measures, individual employees may still find it too dangerous to come to the workplace. Each case must then be looked at to determine the best response. For example, always start by having a conversation to ask exactly what they are struggling with and to take away the fear. One can also offer the employee the option of taking holiday days or unpaid leave if they are not ill but still do not want to come to the office.

If the employee persistently continues to refuse, or if abuse of the situation is suspected, it is important to issue an official warning, for example regarding the application of a stoppage of wages or even dismissal. Under compulsion, there is of course always a chance that employees will start reporting sick. In that case, it is advisable to follow our advice under point 2 below.

#2 Sick leave reporting and coronavirus.
What should be done if an employee reports sick because they do not want to come to the office out of fear of infection, while all RIVM measures are being observed? In such a case, the employee will have no valid reason to stay home. Not even if the employee can work from home, but the employer no longer allows this because the government no longer advises it due to coronavirus. In the case of such a sick leave report, it is advisable to immediately call the employee in for a consultation with the occupational health physician and to immediately inform your case manager of the background. Strictly speaking, the employee is not incapacitated for work and will also show no symptoms indicating illness. Stress symptoms could still give the occupational health physician a medical reason to grant a kind of time-out. However, because the sick leave report is work-related to coronavirus, this will have to be resolved between employer and employee, and the employee also cannot keep this up for very long. The employee will then still have to enter into discussions with the employer about the reason. If the employee refuses that consultation or is unreachable, a warning of a stoppage of wages is appropriate. In the event of persistent, continued refusal, even summary dismissal may be appropriate. The employer can then keep the case manager informed of the progress and content of the conversations. Based on that information, the occupational health physician will judge whether the employee is fit for work again or not. So, in the case of a sick leave report, keep up considerable pressure within the possibilities of the reintegration process.

#3 Having coronavirus does not automatically mean being incapacitated for work!
A commonly heard misconception is that employees must be reported sick when they have the coronavirus. Reporting sick is only permitted when the employee, as a result of the illness, is unable to do their work. If the employee is infected but is, in principle, able to carry out their work from home, then the employer may not report them as sick. See also the flowchart below.

#4 Preventive testing of employees for the coronavirus.
Preventively testing your own staff yourself is not permitted. As an employer, one may firstly not infringe on the physical integrity of employees, so if they do not want it, they cannot be forced. Furthermore, the employer may not process medical data of its staff. An employer may therefore not ask employees about their health or take a test to check. Keeping a record of the reason for a sick leave report is also not permitted. This is regulated, among other things, in the General Data Protection Regulation (GDPR).

The employer can, with the cooperation of the staff, have staff tested for coronavirus by a (company) doctor. Another option is measuring temperature at the entrance. Taking temperatures is, however, also not simply permitted. In most cases, this too involves processing medical data. The GDPR does not apply, though, if only the temperature is read and nothing further is done with it. So, if the temperature is not recorded and also does not end up in an automated system, the employer may measure the temperature, provided the employee gives consent.

If the employee refuses to be measured, you can refuse them entry. Ask an employment law expert for advice if you want to know what to do in such a case regarding continued pay and warnings.

#5 Continued pay in the case of coronavirus contracted during a holiday abroad.
Firstly, an employee cannot be required to stay in the Netherlands once they take holiday. The employer must, however, be alert if employees go on holiday abroad. Therefore, when the holiday request is submitted, ask where the trip is going, in connection with the risks of infection. The employer has a legal basis to request this private information from the employee. After all, the employer must safeguard safety in the workplace for the performance of the employment contract. The employer also has a legitimate interest in this in order to protect the company against economic damage from large-scale infection.

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 during their holiday in that country with a yellow travel advice, they must report sick. In doing so, they must provide their nursing address. The holiday days are then, in principle, regarded as sick days, unless the employee still wishes to have the holiday days counted as such. That could have a financial background, if continued pay during illness is less than 100%. Continued pay as such cannot be stopped.

The matter is different when an employee goes to a country with an orange advice. You can, in principle, prohibit your employees from going on holiday to these areas. If the employee contracts the coronavirus there, and/or is required to go into quarantine, making timely return impossible, the employee also has no right to continued pay. This is because the employee here knowingly and deliberately ran the risk of infection, so the inability to work due to coronavirus must be at his or her own risk. It is best to point this out to employees preventively and to warn them in advance as well. A forewarned employee counts for two.

Here you can check which colour code applies per country: check here.

If the employee goes on holiday anyway despite your having prohibited it or warned of the consequences of infection, it is best to engage an employment lawyer. If you do not proceed to dismissal, it is advisable to have the employee stay home for 2 weeks (in quarantine), with a view to the duty of care for a safe working environment. If the employee can work from home, wages must continue to be paid. If this is not possible, then the employee may not be entitled to wages for that period. Seek advice on this in an individual case.

Questions and/or advice?
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.

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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.