What risk mitigation efforts should the prudent employer take before employees return to the workplace?
Employers should ensure that they are taking any necessary steps to protect their employees. Under the Dutch Working Conditions Act and the Dutch Civil Code, all employers have generic health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and ensure that working practices do not create undue risks to employees. The extent of such obligations is to some degree undefined and depends on the (developing) situation. Government advice and guidance as well as sector specific guidelines developed by sector associations will be an important element in determining compliance in dealing with risks.
Under the generic health and safety obligations, employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection at the workplace. Employers should enforce ‘social distancing’ at the work floor (1.5m distance between employees), e.g. by redesigning the workplace, admitting less employees, introducing one-way walking routes, etc. Employers should also provide up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitizers. We recommend sending multiple reminders and providing posters in the workplace on actions employees can take to help stop viruses like coronavirus spreading.
The Social Affairs and Employment Inspectorate will take enforcement action against employers if there is a risk of contamination and/or employers are not taking sufficient measures or not applying the occupational hygiene strategy.
If necessary, a formal demand for compliance with the measures to be taken by the employer is imposed. If an employer does not agree, the normal objection and appeal procedures apply. Failure to comply with the demand for compliance can lead to further administrative measures, such as a fine and administrative enforcement.
- An employer should also consider whether employees need to return to the workplace or if they can continue to work from home, if possible.
- If employees need to return to the workplace employers could consider temperature testing (note that strict conditions apply in this respect).
Who should be involved in the decisions to return to the workplace?
Each company must employ at least one health and safety officer who is able to implement the measures that focus on health and safety within a company. A director of the company is allowed to hold the position of health and safety officer at small companies that have 25 employees or less.
The health and safety officer supports the employer in the performance of policy pertaining to health and safety at work and is closely involved in drawing up the Risk Assessment and Evaluation (‘RI&E’). It will be up to the employer to demonstrate it took all reasonable steps to protect its employees. This includes: taking into consideration the risk involved and putting in place a work organization in line with expert recommendation, informing and training employees and updating the risk assessment (RI&E).
In respect of implementing the return to the workplace we recommend involving HR, Legal, IT and business leaders. The level of steps required will depend on the nature of the business.
Please note that the consequences of COVID-19 can lead to an intention to adopt, amend or withdraw a scheme relating to working conditions, absenteeism or reintegration policy. Where such an intention arises, the approval of the works council must be sought.
- Consult with employees and representative bodies
What can the prudent employer do to ensure physical distancing in terms of the work space?
The guidance of the Dutch government is that employers should maintain, wherever possible, 1,5 metre social distancing between workers, customers and visitors. This means:
- Employers may need to erect barriers between workspaces in open plan offices where employees work close to each other or separate employees out so that there is a distance of 1,5 metres between them
- This may meant that not all personnel will be allowed back to work at the same time. There may therefore be a system of cohorts of staff who work alternate shifts to enable social distancing
- Employers should also consider the use of lifts and stairs and regulate use (or even closure) of other facilities, such as canteens
- It will also be important to check what subtenants, contractors or outsourced service providers are doing and make sure that it protects employees.
- Encourage virtual meetings
- The Dutch Government has provided specific guidance for certain sectors. Please find the links per sector in response to the question “What protections should a prudent employer provide in addition to physical distancing?”
- Use signage to develop flow of travel through the office
- Consider ventilation in the offices
- Inform and train employees in the use of the workplace
What can the prudent employer do to ensure physical distancing in temporal terms?
In order to ensure social distancing employers may need to consider changes to employees working hours to have staggered starting times, changing shift requirements, splitting workforce into teams, and ensuring all senior leaders don’t return at the same time. This may lead to various employment issues – including changes to employment terms re different shifts, and discussion of pay during times not in workplace.
Please note that the consequences of COVID-19 can lead to an intention to adopt, amend or withdraw a working time or holiday policy. Any such intention requires the approval of the works council.
- Determine changes to working hours that may be required
- Determine the groups of staff and schedule groups to work together
What protections should the prudent employer consider implementing, in addition to physical distancing?
Employers should take the following steps in addition to social distancing:
- Discuss the safety of the company building: Make sure the office space will be sufficiently ventilated and cleaned; provide screens if needed
- Facilitate masks and hand sanitizer
The Dutch government has provided specific guidelines for certain sectors:
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
Employee’s medical information is a special category of data under the GDPR and there are therefore strict conditions that apply as to when the data can be collected and processed.
According to the Data Privacy Authority it is only permitted to check the temperature of employees by the company doctor. However, recently the DPA stated on their website that the GDPR does not apply if the temperature is tested and the information from the test will not be processed. So for example, it is not permitted to register the outcome of the temperature test or place the information in an automated system. The DPA emphasizes that it will issue fines if data of employees is processed by the employer after the temperature test.
The employer could consider using a ‘temperature tunnel’, where employees’ temperature is tested as they walk through the tunnel. Employees should be instructed that they have to go home if they see that their temperature is too high. It should be noted that such an automatic temperature checking system must not process any data of the outcome of the screening.
At present, there are no legitimate grounds for employers to impose health checks on employees. If an employer suspects that an employee is experiencing symptoms, it is advisable to send the employee home and to contact the company doctor. A (company) doctor can test the employee for COVID-19.
Employers are not allowed to process any data concerning health of employees. Our recommendation would therefore be to communicate the questions to the employees by means of flyers/signs/posters/emails and to ask the employees to self-assess whether or not they should be entering the workplace. In order to avoid the risk of processing any data concerning health, the employees should not be asked to (verbally) respond to questions which can be answered with a “yes”. Should an employee show clear signs of the coronavirus (such as coughing), it would be permissible to require this employee to go home. Please note that an automatic temperature testing system which provides the employee with a red or green sign after the testing of the temperature is not permitted.
What are the requirements regarding travel – either to or from the office or business travel?
Travel from or to the office
The government requests that public transport is only used for essential journeys. People should avoid rush hour and adjust their travelling times to times that are less busy. Masks are mandatory on all means of public transport. It is recommended that , where possible, employees should work from home. If employees can come to the office by means of another type of transport, it is advisable that they do so.
The guidance of the Dutch government regarding travel is that individuals should stay in the Netherlands. The government advises that travel outside the Netherlands should only be undertaken in case of serious family circumstances or for work that really cannot be postponed and where physical presence is absolutely necessary. In general employers should continue to consider whether business travel is really necessary considering the prevention of infection or difficulty for employees in returning home.
- Consider methods of travel to the office
- Encourage use of virtual meetings to limit business travel
- Establish protocol for determining business travel
How does the prudent employer decide which employees should return to the workplace?
In determining which employees should return to the workplace the employer should consider the following
- Check which employees are particularly vulnerable or who are shielding a member of their household who is particularly vulnerable, and if it possible, allow those employees to work from home.
- Consider skeleton crews or essential lists of employees to begin staffing requirements
- There may need to be a system of cohorts of staff who work alternate shifts to enable social distancing
Please note that there are several laws in the Netherlands that prohibit discrimination including in the workplace. Employers must be wary of both direct and indirect discrimination claims when determining which employees are required to return to the workplace.
What if an employee refuses to return to the workplace?
Employers should consider whether a refusal to return to the workplace is a refusal to comply with a reasonable instruction. This will depend on the employee’s individual situation and employers must then consider whether to take disciplinary action in response to this. Employers should listen to employees and take a nuanced approach rather than one size fits all.
If employees can continue to work from home then employers should continue to allow that. If an employee has no reasonable ground to refuse to return to the workplace, the employer could consider taking disciplinary action, for example a warning that payment of salary will be discontinued. If the employee does not want to return to the workplace because the employee falls within the vulnerable group, it will be less likely that an employer can carry out any disciplinary action. As this is an unusual situation, we expect that judges will strictly determine whether the disciplinary action was appropriate.
Application to work from home
According to the Flexible Working Act an employer has to take the employee’s application to change the place of work into consideration and has to discuss it with the employee if it does not agree. The Act does not provide that the employer needs substantial business reasons to turn down an application to change the place of work. However, the employer will of course always have to act in accordance with good employment practices and will have to substantiate his refusal.
What other considerations should the prudent employer be thinking about at this time?
Cancellation of vacation
Employers may find that employees seek to cancel their holiday if they are unable to travel. An employee cannot cancel approved holidays unilaterally. The employee will have to discuss this with the employer. Whether the employer must agree to a request to cancel planned holiday will depend on the circumstances of the case. According to case law the employer must present itself as a "good employer", however, if there is no work for the employee then the employer has good reason to refuse the cancellation and to require the employee to continue to take the holiday. Further, the aim of holidays, to be able rest and to have a period of relaxation and free time, can also be met in the own country of the employee instead of abroad.
What are the safety and employment issues for consideration regarding the vaccines?
There is no legal basis (yet) for employers to require employees to get vaccinated. To require an employee to get vaccinated is in breach of article 8 of the European Convention on Human Rights: the right to a private life and in particular the right to physical integrity. The right to physical integrity is laid down in article 11 of the Dutch Constitution. Exceptions to this fundamental right are in principle only possible if regulated by law, and no such law currently exists.
In the Netherlands, work related health and safety obligations are laid down in the Working Conditions Act. According to this Act, the employer is responsible for the health and safety of its employees at work. This duty of care includes, among other things, preventing or limiting the dangers and risks around health and safety, and, if necessary, taking effective measures. The employee is required to follow all reasonable instructions from the employer to ensure health and safety in the workplace. This right to instruct employees allows employers to ensure that employees work in such way that the duty of care is met. It does not provide an absolute safety guarantee from the employer, nor is it a legal basis to require employees to have a COVID-19 vaccine.
There is, however, an ongoing discussion as to whether specific circumstances can justify infringing the fundamental right of physical integrity, for example in relation to employees in care homes. It is argued that an exception could be allowed due to a pressing social need, in this case to protect public health. Some legal experts argue that employees can be required to be vaccinated if the following conditions are met: (i) the health of patients and colleagues cannot be guaranteed in other ways; (ii) vaccination is without risk to the health of its employees; and (iii) vaccination significantly reduces the risk of infection. Whether this argument will hold up in court remains to be seen.