An employer has a legal duty of care to ensure a safe and healthy working environment for its employees and must prevent illness as much as possible. An employer must inform employees, e.g. about taking hygiene measures and precautions and what to do if they are infected with the coronavirus. A precautionary measure is, for example, promoting to work (remotely) from home or postponing/canceling a business trip. We advise employers to set up a policy regarding the coronavirus in consultation with the company doctor. Meeting the duty of care and acting as a good employer can help ensuring the peace of mind and avoid liability for non-compliance damages.
An employer has a right of instruction towards its employees. This means, for example, that an employer may oblige its employees to follow certain hygiene measures, to work remotely from home or postpone/cancel a business trip. Employees are required to follow such instructions. Employees are in principle obliged to (proactively) inform their employer if, for example, they have visited the affected areas or have a sick child that might be contaminated with the coronavirus. This information enables the employer to ensure a safe and healthy working environment. The employer's right of instruction is limited. For example, an employer should not require from an employee that he/she cancels a holiday as going on holiday is a private matter. Some collective labour agreements contain exceptions for situations where it is no longer possible to operate properly due to the holiday of the employee.
An employee may, in principle, not be obliged to take up holiday days. The employee is in these cases entitled to emergency leave or short-term care leave. Emergency leave is meant for short leave due to immediate private emergencies (with full pay). For example, the first day when a family member is admitted to a hospital or summoned to quarantine. Short-term care leave is meant for employees that have to take care of relatives. This short-term care leave is available for a short period and the length of such leave depends on the circumstances (with a maximum of two times the weekly working hours during twelve months). During this short-term care leave the employee can remain entitled to seventy percent of the normal salary, but additional rules can apply (e.g. pursuant to an employee handbook and/or CLA). If an employee wants/must stay at home longer than is permitted by law, the employer and employee will have to make agreements about this, including e.g. taking unpaid leave or holiday days. If all employees are obliged to work remotely from home (i.e. and have the right to full payment of wages), employees can, in principle, not be forced to use emergency leave/short-term care leave.
Most employees are now required to work from home because of the coronavirus. However, not all employees can work from home, for example shop and catering staff. In this situation, an employer might want to oblige employees to take their holiday days. As explained briefly under question 3, the employer can in principle not oblige the employee to take his or her holiday days. This is only possible if this has been agreed in writing in the employment agreement or collective labour agreement (“CLA”) and the employer has determined the holiday in time so that the employee can actually make plans to enjoy his or her holiday. The latter condition applies as holiday has a so-called recuperation function, which means that the employee must be able to recover and/or rest during the holiday.
A different regime applies to so-called working time reduction (atv or adv) days, because these days do not have the same purpose as holiday days. The purpose of the right to vacation is to enable the employee to rest and have a period of relaxation and free time. Atv and adv days have been created to combat job losses and create new jobs and are therefore not aimed at 'relaxation' and 'free time'. This means that the strict conditions as described above do not apply to atv and adv days. The employer can therefore oblige the employee to take these days, unless this option is prevented in the employment agreement or CLA.
If the employee is ill due to the coronavirus, the employee will receive the salary as agreed upon in the employment agreement or CLA. If the employee is not ill, but is unable to work due to, for example, a mandatory quarantine or travel ban, the employer must continue paying the full salary. If the employer decides to send employees home (preventively), the full salary must continue to be paid. The employee is not entitled to stay home out of fear for infection on his/her own initiative. If the employee refuses to resume his/her duties, the employer can use a suspension of wages as a pressure medium, but only after he has given an official warning to the employee. In principle, employees who are kept in quarantine during their holidays due to a corona outbreak are also entitled to payment of full salary.
On 31 March 2020, more was announced about the new scheme, the temporary Emergency Measure Bridging for Retention of Work (NOW). Currently, the following information is known about the emergency measure:
If you do submit a dismissal application to the UWV for economic reasons on or after the date of entry into force of the NOW (2 April 2020), the UWV will take the NOW into account. This means that you must demonstrate that dismissal cannot be prevented by appealing to the NOW and why not. The NOW is not taken into account in respect of dismissal applications submitted before April 2, 2020. Failure to comply with the condition not to apply for dismissal results in a fine (discount on the compensation): the wages of the employees made redundant are increased by fifty percent for the calculation, and this wage plus the fifty percent increase is deducted from the total wage bill on which the final amount of the subsidy is based. You must also pay this fine if the UWV rejects the application for dismissal.
- not extending a fixed-term employment contract;
- dismissal during the probation period;
- termination by mutual consent;
- request for termination before the sub-district court for reasons other than economic reasons;
- application for dismissal at the UWV due to long-term incapacity for work (more than two years).
The application desk of the UWV is open since Monday 6 April 2020. You can apply for the wage costs from 1 March 2020. The office will remain open until 31 May 2020. The UWV aims to pay an initial advance of the allowance within two to four weeks after application.
The scheme applies to the wage bill for the period March to May 2020. However, the possibility of extending the scheme by three months is kept open. Further conditions may be imposed if the scheme is extended.
As per 17 March 2020, no new applications can be submitted for the reduction of working hours scheme. Applications for reduction of working hours that have already been submitted are considered as applications submitted for the new scheme; additional information will be requested from the applicants. Applications for the working hours scheme that were already granted will no longer be extended. These employers must submit an application under the new scheme.
More information about the NOW scheme can be found in this PwC Tax News article.
In principle, it is forbidden to process specific medical data. This may be different in exceptional cases. This may be the case when the processing of the data is necessary to prevent further spreading of the coronavirus, for example if there is a serious threat of an outbreak of the virus in the workplace. However, a serious threat is not easily assumed. If, for example, an employee has been in a risk area but does not yet show any symptoms, there might be no serious threat. In that case, the employee cannot be obliged to undergo a medical test. However, the employee may be advised to consult a general practitioner. This may be different if the coronavirus spreads further and the government advises on this topic. An employer is then expected to follow the government's instructions on carrying out health checks.
Self-employed workers are individuals who work under a contract for services. Self-employed workers do not have the same level of rights and protection as regular employees. For self-employed workers in the Netherlands it is not (yet), in contrast to regular employees, compulsory to have insurances for illness, invalidity or unemployment. Therefore, they must make arrangements for these kinds of insurance themselves if they want to receive any benefit in the event of illness or disability.
On 17 March 2020, the Dutch government announced that it will introduce a temporary, more relaxed scheme to support self-employed people, including self employed persons without personnel, so that they can continue their businesses. The scheme is being implemented by the municipalities. Self-employed people can receive extra income support for their living expenses for a period of three months via an accelerated procedure. This support will supplement their income up to the social minimum and does not need to be paid back. This temporary support scheme for self-employed people is not subject to a means test, partner test, or even a viability test. Under this temporary scheme, support is also possible in the form of a loan for operating capital up to a maximum of 10,157 euros, against a reduced interest percentage.
Since the Balanced Labour Market Act (WAB) came into force in January 2020, the use of 0-hours contracts has become less flexible. An employee working under a 0-hour contract is in principle not entitled to payment of wages if he/she does not work. The WAB provides that specific rules apply for 0-hours contracts. The employer must summon the employee at least four days in advance (this term can be shortened in a CLA to 24 hours). If the employer withdraws the summon within four days before the start of the work activities, the employer is obliged to pay the salary for the (initial) summoned period. This main rule also applies if there is less work due to the coronavirus. If the employer no longer calls the zero-hour employee, the employee is in principle no longer entitled to wages.
Yes, the Working Conditions Act also applies to employees who work at home. However, more flexible working conditions apply than to the workplace in your company.
Contact a central point in your organisation; the mobility team or another central point. This will ensure consistent communication to employees. Also, when iSOS is used, this appears a reliable source to obtain insight in which employees currently working abroad for your organisation.
We recommend all organisations to adhere to the guidelines of the RIVM in this respect and also to address this to their foreign entities. The measures taken with regards to international assignments should be in line with the further policy and guidelines of crisis teams and/or task forces within your organisation.
Indeed, the tax and social security position of a cross-border employee is determined based on where the employment activities are (physically) performed (183-days rule, etc). Potentially, thresholds may be reached as a result of the changed workpattern. It is therefore of much importance that the employee keeps track of his workdays to ensure that potential tax and social security consequences can be reported (f.e. by means of the personal income tax return 2020).
We expect the social security authorities not to apply the existing thresholds very strictly, when only caused by the Corona-measures certain thresholds are exceeded resulting in a change of the social security position of an employee. Preferably, the social security scheme of the initial country will continue, also during the Corona-crisis. The authorities are requested to confirm such an approach.
Finally, it should not be forgotten to review and assess whether work- or residence permits require extension when employees need to remain longer at a certain (work)place.
Irrespective of the fact that the employee started his/her work for the Dutch company, the salary of the employee will be taxable in the employee’s home country. It is important that the employer investigates what requirements this will lead to in the employee’s home country.
The employee will not lose his/her entitlement to the 30% ruling as a result of this. Please note however that, when the 30% ruling is already applied for or issued by the Dutch tax authorities, it needs consideration whether the start date of the ruling needs to be amended.
No, initially this is not necessary. Only when assignments are officially ended or when the interruption of the assignment exceeds 2 months, action is needed in this respect.
For assignments that have not yet started, it is advisable to postpone the start date of the statements to ensure that (potentially) the maximum duration of the statement can be used.
No, the authorities have not announced any more relaxed policies concerning Corona related to the deadlines of several work- and residence permits. Though, this is currently under discussion with the authorities.
An overstay will not have any consequences as long as there is a grounded reason for (for example quarantine). This needs to be substantiated by proof however.
The law states that employees are entitled annually to a percentage of 8% of their gross annual salary as a holiday allowance. Most companies pay this amount with the salary round in May. In our opinion it is possible to spread the payment of holiday pay over a number of months or to postpone it. The conditions for this are that employees must give their consent in writing and that the employer must pay the holiday allowance ultimately in December 2020 (i.e. this calendar year). It is advisable to properly motivate a request for postponement of the holiday allowance and to use it only as an ‘ultimum remedium’. We recommend the employer to explain the reasons for the measurement in the letter, e.g. that he wants to prevent liquidity problems and possible layoffs in the long term. With good motivation, employees are expected to be more willing to grant their consent.