Recently, the Central Netherlands Court ruled that imposing the face mask requirement in the workplace falls under the employer's right to issue instructions. The employer may suspend payment of wages and deny access to work as long as the employee does not comply with the instruction to wear a face mask. An employee who believed that the employer was not allowed to require him to wear a face mask during working hours, initiated summary proceedings.
In summary, this case concerns a pastry shop that informs its employees that a tightening of the policy will follow, whereby everyone must wear a face mask within the company. The employee, a driver, did not comply with the policy and showed up for work without a face mask. His manager spoke to him about not following the policy, but the employee still did not comply with the instruction. He was suspended from work and had his salary suspended.
In Curacao, employers may give instructions based on article 7A:1615b of the Civil Code. Under the right to give instructions, the employer is authorized to impose regulations on employees in connection with the performance of work. The employee is obliged to comply with these regulations, if these regulations are reasonable and fair. What is reasonable and fair?
This is determined on a case-by-case basis. Judges weigh up the interests of the employer and the employee. On the one hand, the employer must ask himself whether he may reasonably require the employee to comply with the given order. On the other hand, if the employee refuses to carry out the order, he must be able to substantiate this with reasons.
In this ruling, the judge ruled that the employer's interest in requiring the wearing of a face mask on the work floor outweighs the driver's interest. Firstly, because the employer must protect the individual interests of the employees by ensuring a healthy and safe working environment. Secondly, the employer must protect its business interest, because it has an obligation to continue paying wages when employees are ill.
In view of this, the court rules that the employer is obliged to do what is necessary and what lies within its power to prevent infections with the Coronavirus in the workplace. Wearing a face mask is accepted in society as a means that can contribute to safety and health during the Corona pandemic, according to the court.
With this judgment, the judge seems to rely on the employer's duty of care to protect the safety and health of its employees. This raises the question for us whether employers can be held liable if they decide not to impose a face mask requirement in the workplace.
The employer is required under article 7A:1615x of the Dutch Civil Code to take reasonable measures to ensure that the employee does not suffer any damage during the performance of his work. In order to answer the question of whether the employer has breached his duty of care, it is examined whether the employer has taken sufficiently specific measures to prevent unsafe situations. It is also examined whether the employer has taken the required measures to avoid the risks known to him.
Wearing a face mask is, as the judge emphasizes, seen as a socially accepted means to prevent Corona infections. This is also known to employers. If one takes the judge's judgment further, it can be stated that wearing a face mask in the workplace is a reasonable and specific measure to prevent the known risk of Corona infection. If the employer does not impose a face mask requirement in the workplace, this means that the employer is in principle not fulfilling his duty of care to protect the safety and health of his employees. As a result, the employer is in principle liable for the damage that results from this. On that point, we still see a challenge in demonstrating the connection between the employer's negligence and the employee's damage. After all, the question is whether the employee contracted corona in the workplace.
Note: January 13, 2021, ECLI:NL:RBMNE:2021:51
About the authors
Didi Wildeman
