What precautionary measures should I, as an employer, take towards my staff now that the coronavirus is also present in the Netherlands?
As an employer, you have the statutory duty to ensure a safe and healthy working environment. This flows from the employer’s duty of care (under article 7:658 of the Dutch Civil Code) and good employership (under article 7:611 of the Dutch Civil Code). Now that the coronavirus has also emerged in the Netherlands, this means you must do everything possible to prevent spread in the workplace. However, you are not alone in this; something can also be expected of employees!

Do you have employees who have been on holiday or a business trip in affected areas? In such a case, we advise you to ask your employees to work from home for at least two weeks, if that is possible. However, this may only be made mandatory once there is a genuinely concrete suspicion, based on facts, that someone is ill.

Besides the measure of having staff work from home, it is also important to inform staff of which measures you, but also they, must jointly take:

For instance, you can ask your staff the following:

1. Wash hands thoroughly with soap and use disinfectant gel (put up an RIVM instruction poster with pictures);
2. Don’t cough or sneeze into your hand but into the inside of your elbow;
3. Touch your own and each other’s faces as little as possible.

You do not need to take the following measures:

1. Measuring the temperature of staff;
2. Preventively testing for corona;
3. Wearing face masks if there are no symptoms;
4. Not shaking hands.

May I, as an employer, measure my employees’ temperature with a fever scanner?
Using a fever scanner requires a legal basis under the GDPR. A fever scanner is, after all, an infringement of employees’ privacy, because in such a case special categories of personal data are collected, namely medical data. This also applies, for example, to the so-called ADM test (alcohol, drugs and medication). According to the Dutch Data Protection Authority, a fever scanner may therefore only be used in very exceptional cases. Collecting medical data, such as employees’ temperature, does not have to be in breach of the GDPR if you can rely on the exceptions under the law. If further spread of the coronavirus can be prevented, an appeal can, for example, be made to the ground that the processing is necessary for public health or the public interest. You can also ask your employee for consent to process that person’s special categories of personal data. However, scientific studies show that testing employees’ temperature is not useful.

What should I, as an employer, do if staff do not follow my instructions?
Besides good employership, there is also good employeeship. This means the employee is also obliged to take care of the safety and health of themselves and their colleagues. Employees are therefore, first and foremost, required to listen to the measures you, as employer, take. However, you cannot prohibit your staff from travelling to affected areas in their own time, but you can advise against it. If an employee does not follow your instructions, you can, for example, send the employee home or suspend them for their irresponsible behaviour. In extreme cases, where, for example, an employee diagnosed with the coronavirus knowingly and deliberately shows up at the workplace, heavier measures, such as dismissal, can be taken on the basis of culpable conduct.

When must I, as an employer, continue to pay wages?
If an employee becomes infected with the coronavirus and is thereby unable to work, you must continue to pay the employee’s wages. Since 1 January 2020, the rule has applied: ‘no work, still pay, unless you can prove that performing the work is not for your account and risk as employer’. Before that, the rule was: ‘no work, no pay, unless the employee can prove that not performing the work is for your account and risk’. The main difference is the burden of proof. Under the new scheme, the burden of proof no longer lies with the employee but with the employer.

From the new ‘no work, still pay’ scheme, it follows that an employee is still entitled to wages if the employee has to go into quarantine or stays home for the time being after a holiday in an affected area. These are, after all, all cases that are not for the employee’s own account and risk.

If the virus spreads further in the Netherlands, this could also result in schools closing or public transport running less frequently. In such cases, it can happen that certain employees cannot get to their workplace. In these situations too, you must continue to pay wages. You may, however, expect employees to look for alternative ways to show up at the workplace, or to work from home and at least be reachable and available during working hours. If an employee does not meet this and you can prove it, you do not have to continue paying that employee. In such a case, the employee could, for example, take unpaid leave.

When am I, as an employer, eligible for short-time working, and what exactly does this involve?
A virus outbreak can be seen as an extraordinary circumstance resulting in temporarily less work. Such a circumstance does not fall within the normal entrepreneurial risk. If you, as an employer, temporarily have less work as a result of the coronavirus, you can claim short-time working and have your employee work fewer hours. Through this scheme, employees who temporarily have less work because of the coronavirus nevertheless continue to receive their full wages from the employer. The employer receives a contribution for this. As an employer, you do need to do something for this. You can apply to the Ministry of Social Affairs and Employment for a short-time working permit. The permit’s term is 6 weeks, and within this term you can choose whether to have staff work less (at least 20% less) or not at all. Furthermore, you may apply for short-time working for particular groups or individual employees. If the permit is granted, you can report this to the UWV via the Short-Time Working Notification form. Does the situation improve within 6 weeks? Then your employees can simply return to full-time work. Is there still no improvement after 6 weeks? Then you can apply to extend the short-time working arrangement to a maximum of 18 weeks. Short-time working can only be requested for staff for whom you have a continued-wage-payment obligation. This means employees with a validly agreed 0-hours contract (only allowed for the first 6 months) or on-call workers are not entitled to this.

What am I, as an employer, allowed to ask an employee upon a sick-leave report?
If an employee reports sick to you, they do not have to tell you that they are suffering from the coronavirus. An employee is, after all, entitled to privacy regarding the illness. Often, an employee will nonetheless want to say what is going on, and you are of course allowed to listen. You can, of course, ask whether it is a contagious illness so that you can take precautionary measures. The employee could simply answer that question with a yes or no. Whether the employee actually has to answer this question involves a balancing of interests. The interest of the employer and colleagues in needing to know this is, of course, quite significant. Especially when it comes to the coronavirus, this is of very great importance for an employer to know, in order to take measures. In my view, you are therefore entitled to ask your employee further whether there is a contagious illness posing a danger to colleagues. The most privacy-safe way to get an answer to that question is to have the employee called in to see the occupational health physician. They are allowed to record this medical information and pass it on to the employer. Other questions you are allowed to ask during a sick-leave report include:

• Do you have an idea how long you will be absent?
• Are there matters and/or tasks that need to be handed over?
• What else shall we agree?
• What is your nursing address?
• Where can I reach you in the meantime?

Flu virus employer policy
In summary, it is necessary for you, as an employer, to know how you and your staff should act during the outbreak of a flu virus. This is important not only for the coronavirus but also for any future flu epidemics. Right now, it concerns the coronavirus, but every year companies suffer from flu epidemics that affect business operations. It is therefore good to have a policy plan ready to protect the health of your employees. Should you be interested in drawing up a policy plan, the lawyers at The Legal Company would be happy to help you with this. Feel free to contact us on 020-345 01 52 or via info@thelegalcompany.nl.

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.