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.
The application period for the first NOW scheme (for the wage costs from March up until May 2020) has now been closed. The application period for the extended NOW scheme (for the wage costs from June up until September 2020) runs from 6 July up until 31 August 2020. We will discuss the extended NOW scheme (NOW 2.0) below. In addition, you will find more information below about the determination of your NOW grant (both NOW 1.0 and NOW 2.0).
A: For a period of four consecutive months, you must have a turnover loss of 20%. You can choose a four-month period that starts on either June 1, July 1 or August 1 for the calculation, depending on when you expect the greatest loss of revenue. If you are making use of the NOW for the second time, the four-month period must follow directly on the chosen three-month period for NOW 1.0.
To calculate the loss of turnover, the main rule is that you compare the expected loss of turnover in the chosen four-month period with ⅓ of the annual turnover of 2019. For companies that started after1 January 2019 the loss of turnover as of the first full calendar month to 29 February 2020 can be converted to four months.
A: In principle, the loss of turnover must be calculated at group level. If there is a minimum of 20% loss in turnover at group level, all withholding entities within the group who apply for NOW must use the loss of turnover at group level.
The group often concerns the group for which the consolidated annual accounts are drawn up. The turnover of foreign subsidiaries that have no Dutch wages for Dutch employee insurances do not need to be included in the calculation of the drop in turnover. The group composition on 1 June 2020 is decisive for the calculation of the drop in turnover.
Q: Is it possible to request NOW 2.0 based on the loss of turnover of an individual operating company?
A: Individual withholding entities within the group can only apply for NOW on the basis of their own turnover loss if the group as a whole does not have a 20% loss of turnover. Stricter conditions apply in that case. For example, the rules on the dividend and bonus ban are stricter (see below). A more extensive audit is also required.
Q: How much NOW subsidy do I receive?
A: The amount of subsidy for wage costs depends on the loss of turnover. You can request an amount that is a percentage of your wage equal to 90% of the percentage of your turnover loss. For example, if you have a turnover loss of 50%, you will receive 90% of 50%, so 45% of the wage costs. You can thus request a maximum of 90% of the wage costs as a subsidy. In addition to this amount, a flat-rate surcharge of 40% is added as an allowance for the employers’ costs.
Q: How is the amount of my subsidy determined for the NOW?
A: The UWV determines the amount of your wage costs on the basis of the wage tax return of March 2020 (reference date 15 May) with a fixed flat-rate surcharge of forty percent for employers' costs (holiday pay, pension contributions and employer contributions). The wage of flex workers and of zero-hour contracts is also included in the calculation. There is a maximum wage per employee of 9,538 euros per month. Salary above this amount will not be compensated by the UWV.
Q: How much NOW advance payment do I receive from the UWV?
A: Based on your application, the UWV will make an advance payment of 80% of the expected subsidy. The UWV reimburses this advance payment in a maximum of three installments and tries to pay the first installment of the advance payment within 2-4 weeks.
The actual loss in turnover is determined afterwards and the final compensation is determined on the basis thereof.
Q: How can I apply for the NOW?
A: You can submit a subsidy application to the UWV with a form. That form can now be found at https://now.uwv.nl/.
You must enter the following information on the form:
your company details;
the continuous four-month period over which the loss in turnover is expected;
the percentage of expected loss in turnover;
the wagel tax number (a separate application should be submitted for every individual wage tax number); and
the bank account number on which you (potentially) receive your payments from the Tax Authorities with regard to wagel taxes.
Q: When do I need an auditor's report or a third party statement for the NOW application?
A: An auditor's report is mandatory for companies that have received an advance payment (80% of the amount granted) of EUR 100,000 or more. To prevent an applicant from receiving a low advance, but nevertheless receiving a subsidy that is (much) higher than EUR 125,000, without having to submit an auditor's report, a final subsidy of at least EUR 125,000 also requires an auditor's report. Companies that have received an advance payment of less than EUR 100,000 are responsible for estimating whether the subsidy is set at EUR 125,000 or more. For this purpose, the Ministry has made an online tool available that can be used to make a reasonable estimate of whether or not an auditor's report is required. Apart from the amount of the advance payment and the final subsidy amount, an auditor's report is also mandatory for companies that are part of a group and at group level the loss is less than 20%, so the subsidy is applied for at operating company level.
If companies receive an advance payment of less than EUR 100,000 but more than EUR 20,000, or if the amount of the final subsidy is less than EUR 125,000 but more than EUR 25,000, a third-party statement confirming the turnover loss must be submitted. This can be a statement from an administration office, financial service provider or sector organization. The Tax Authorities also request such a third-party statement in the event of deferral of payment in special circumstances.
Q: When can I apply for the second installment of the NOW grant scheme (NOW 2)?
A: The second application period NOW (NOW 2) started on Monday 6 July. Until 31 August 2020, employers can apply (again) for NOW compensation. The application period for the first installment of the NOW grant scheme (NOW 1) has been closed as of 6 June 2020.
Q: When can I submit a request to determine the first subsidy period (March, April, May 2020)?
A: All employers can apply for the determination of NOW-1 as of 7 October 2020. Contrary to previous announcements, this includes employers who also apply for NOW-2. It is not necessary to apply for the determination of both terms of the NOW-subsidy at the same time.
Q: Do I need a Dutch bank account number, as a foreign employer?
A: No, this is not necessary. A bank account number of an EU member state or EEA country is sufficient. Only if you, as a foreign employer, do not have a bank account number with IBAN, you are requested to complete your application later with a SEPA bank account number. The period within which you must submit this is stated in the request.
Q: Can I make use of the second NOW scheme (NOW 2) if I made use of the first NOW scheme (NOW 1)?
A: The NOW 2 subsidy scheme can be applied for by both employers who have not yet applied forthe NOW scheme and employers who have already applied of the first NOW scheme. One extra condition for the latter group is that the period for which the subsidy will run, which is a four-month period for NOW 2, is directly following on the subsidy period for NOW 1.
Q: Can I withdraw the request later if circumstances justify it?
A: Yes, in fact, the regulation prescribes that the employer is obliged to report immediately in writing if other circumstances arise that may be important for a decision to change, withdraw or determine the subsidy.
Q: Does the NOW subsidy only apply for my permanent employees?
A: You can apply for the subsidy for both permanent employees and employees with a flexible contract, insofar as they remain employed during the subsidy period. Temporary employment agencies can also apply for subsidy for the temporary workers who work for them.
Q: What are the consequences of the NOW for the unemployment rights of my employees?
A: With the scheme, your employees do not use their unemployment rights.
Q: What obligations do I have to fulfill for the NOW?
A: First of all, as an employer, you commit yourself, as with NOW 1, by applying for the subsidy not to fire your employees for business reasons during the period in which you receive the subsidy. If you do fire employees for business reasons, your final grant will be reduced and possibly you need to pay back part of the advance payment you received. Under the NOW 1 scheme, in case of dismissal the subsidy would be reduced by 90% of the employee's wages during that period, with a surcharge of 50%. With the NOW 2, this "fine" or surcharge is not applicable. For NOW 2, major dismissal applications for 20 or more employees by employers who receive a NOW subsidy must obtain approval from the unions. Otherwise, the total amount of NOW subsidy will be reduced with 5%. New obligations have also been added to the NOW 2 scheme. As an employer, you now also have an obligation to make an effort under NOW 2 to encourage your employees to take additional training and retraining or to participate in development advice. In addition, companies that are required to provide an auditor's report (see above) are under an obligation not to pay dividends over 2020 to shareholders or bonuses to the Board of Directors of the group and the legal person or company, and not to buy own shares. This obligation applies up to and including the date of the meeting at which the annual accounts are adopted in 2021.
Q: What is the difference in the bonus and dividend ban for subsidy applications at group level and at operating company level?
A: The NOW 2 bonus and dividend ban depends on where the loss in turnover is determined. When the decrease in turnover is determined at the level of the group (and the decrease in turnover at group level is therefore 20% or more), the employer applying for the subsidy is obliged for 2020, up to and including the date (in 2021) of the meeting in which the annual accounts for 2020 are adopted to:
- not to pay out dividends to shareholders,
- not to pay bonuses to the Board of Directors, the board and - management of the group and the legal person or company; and
- buy own shares.
However, if the subsidy scheme is applied for at the operating company level, because the group expects a drop of less than 20% in turnover, but the individual employer does expect to meet the conditions, all employers and legal entities within the group are prohibited from, among other things, to pay bonuses to the board and / or management of the group and of the legal person or company that has applied for the subsidy as an operating company.
Q: Can I also use the NOW as a dga (director-major shareholder)?
A: That depends on whether you, as director-major shareholder (dga), are insured for the employee contributions. The NOW applies to all employees for whom the employer pays payroll taxes and who are insured under the WW, ZW or WIA. This means that if you, as a dga, are not insured for the employee contributions, your wage costs will not be covered by the scheme.
You can read more on the NOW scheme in our PwC Tax News articles:
Details of the extended NOW scheme (23 June 2020)
Extension NOW scheme and adjustments first term NOW (20 May 2020)
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.