Employers in times of crisis: Do's & Don'ts

April 20, 2021

Since the corona outbreak, it has become very clear that employers bear the greatest risks in this pandemic. The corona crisis has created many new issues in employment law. The longer the crisis lasts, the more visible the consequences on the work floor become. In most cases, it comes down to the question of how the employer, who must ensure a healthy and safe working environment, can give substance to this. In this blog we will consider the question of what the rights and obligations are of employer and employee in the current crisis.

The DO's and DON'ts in a row:

The employer is not obliged to introduce a face mask requirement, but it is strongly recommended to do so. Wearing a face mask in the workplace not only protects the individual interests of the employee, but also the business interests of the employer.
A request to work from home may not simply be ignored. If there are compelling business interests (for example the nature of the work) that oppose the adjustment of the workplace, there is more room to reject such a request from the employee. The employer is then obliged to take appropriate safety measures on the work floor. An important consideration in this regard is that there is no legal right to work from home.
An employer may not unilaterally change employment conditions (such as a salary reduction or mandatory vacation hours) with a single reference to the corona crisis. Our advice is to talk to the employees and find a solution together.
The employer is obliged to continue paying the salary in full, even if it concerns a non-sick employee who has to go into quarantine and is therefore unable to work. This is a circumstance that is primarily at the employer's risk. Depending on the reason why the employee has to go into quarantine, this may be different.
The introduction of a vaccination requirement by employers is a hot topic. The vaccination requirement requires a specific balancing of interests between the right to privacy and the general health interest that can only be weighed by the judge. Until then, employers are advised not to ask for proof of vaccination, regardless of its form.

Face mask requirement

Wearing a face mask in the workplace is a measure that many employers have introduced to prevent corona infections. The Central Netherlands Court recently ruled on this. In short, the judge ruled that introducing the face mask requirement in the workplace falls under the employer's right to issue instructions. This means that an employee is in principle obliged to comply with this measure.

The face mask requirement is an item we discussed earlier. For more information, please read this blog to read again.

Note: January 13, 2021, ECLI:NL:RBMNE:2021:51

Working from home or being forced to come to work?

Working from home is a much-discussed topic due to the corona crisis. The government has advised to work from home as much as possible and to spread out working hours if possible. Nevertheless, employees are required by employers to work at the office location. But is that allowed?

A request to work from home may not simply be rejected. Since there is no legal right to work from home, granting such a request is also not mandatory. (Important) business interests will have to be weighed against the employee's interest in the request. If the employer rejects the request, this is offset by the fact that taking appropriate safety measures in the workplace is mandatory.

It may happen that the employee refuses to come to work at the office location. At that moment, there is formally speaking a refusal to work. This then has the consequence that the employer is not obliged to continue paying wages, among other things. However, in the circumstance that the employer does not care for the safety and health of the employee, the above is no longer applicable.

Note: 16 June 2020, ECLI:NL:RBGEL:2020:2954

Salary reduction, mandatory recording of vacation hours and the obligation to continue paying wages

The starting point is that the employer is in principle obliged to pay the employee's salary in accordance with the employment contract and any applicable collective labour agreement. The non-sick employee who has to go into quarantine is also entitled to full continued payment of wages. That may sound strange, but it is a risk that is initially borne by the employer. It is therefore not possible to unilaterally deduct the quarantine from the employee's holiday days. The employee's permission is required for this.

Exceptions to the rule always exist. Also in this situation. Consider the circumstance that the employee has deliberately travelled to a risk area and knows that he has to go into home quarantine after returning or when the employee has not returned as quickly as possible when the travel advice has changed.

The employer may also not simply reduce the employee's salary unilaterally. The bar for unilaterally changing employment conditions due to corona is high. The mere reference to the corona crisis is not a drastic change that justifies a salary reduction. The employer must be able to demonstrate, with substantiation of financial documents, among other things, that a salary adjustment is necessary. A disguised dismissal without further substantiation is therefore not acceptable.

If you, as an employer, receive compensation within the meaning of the NOW scheme, the form of the employee contribution (20%) must also be agreed.

Note: 1 July 2020, ECLI:NL:OGEAC:2020:161

Dismissal for financial reasons

Many companies are struggling financially due to corona. The employer may therefore be forced to dismiss employees or not to extend employment contracts. In this context, the employer is not permitted to dismiss the employee for economic reasons as long as he uses the NOW scheme. Employment contracts simply continue and can then only be terminated in a legally valid manner, in short, by mutual consent, summary dismissal, termination with the required permission of the Ministry of Social Development, Labour and Welfare (SOAW) or through legal proceedings. A point of attention here is that the employer must be able to demonstrate that despite using the NOW scheme, the dismissal cannot be prevented.

Vaccination certificate

Neither the Netherlands nor Curaçao has any form of mandatory vaccination. As far as Covid-19 is concerned, both countries have focused on voluntary vaccination to date. A national mandatory vaccination for corona is not yet an option. This does raise the question of whether an employer may ask an employee for proof of vaccination. Such an obligation entails the necessary considerations. In this consideration, the employee's right to privacy plays a prominent role. In this context, an employer should not simply demand proof of vaccination, because this involves special personal data that says something about the employee's health.

Vaccination is now seen as the solution to corona infections. In that sense, it could be a good move to allow a healthcare institution to ask for a vaccination certificate, for example, because this could result in people having more confidence in vaccination. Ultimately, this is a matter that a judge must assess based on the specific circumstances. All this also applies to a corona test.

We have already commented on the introduction of a national vaccination requirement in the Netherlands or Curacao. For more information, please visit this blog to read again.