The outbreak of Novel Coronavirus (COVID-19) has sparked fears of a worldwide pandemic. The World Health Organization has declared that this is a public health emergency of international concern. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
At time of writing, there are no specific mandatory obligations for employers in respect of COVID-19.
However, the National Institute of Public Health and the Environment (RIVM) is advising that if an infection is suspected, the person in question must be isolated at home or in a hospital.
Unless or until specific legal obligations arise, 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 vague and depends on the (developing) situation.
As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on actions employees can take to help stop viruses like coronavirus spreading. Such advice may include:
• Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
• Put used tissues in the bin immediately
• Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
• Try to avoid close contact with people who are unwell
We further recommend notifying employees where they can access more information if they are concerned.
Can employers request or require information from an employee about potential or actual exposure to the virus?
In the Netherlands, an employer may instruct an employee to see a company doctor if there are legitimate grounds (such as the employee having a fever). Although an employer can require an employee to see a company doctor, they cannot physically force them to do so. Having said that, failing to follow such an instruction may result in disciplinary action.
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer, sits firmly at the nexus between data privacy and employment.
Any such data must be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is experiencing any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country.
• The processing of 'health data' by employers is highly restricted in the Netherlands.
• Employers could seek to rely on an exemption to this restriction for preventive or occupational medicine under art. 9(2)(h) GDPR together with art. 30(3) of the Dutch Implementing Act GDPR (Uitvoeringswet AVG, UAVG).
• However, this exemption may only apply to (i) social services / healthcare workers, institutions or facilities, or (ii) insurance companies. Employers cannot rely on this directly.
• It may be possible to have a company doctor or occupational health and safety service (arbodienst) ask employees health related questions under this exemption.
Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site. In such cases, it should be explored whether there is a legitimate interest in requesting employees to provide their travel information for this purpose. Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.
What should employers do if an employee is absent or infected?
If an employee has been diagnosed with or is suspected to have contracted the virus, then the employer will have reasonable grounds to request them to stay at home. It is probable that this employee would be quarantined regardless. Employees will be entitled to paid sick leave as per contractual terms or, absent those, statute.
Refusal to work or attend work
If the employee has a legitimate and concrete concern which directly relates to the (physical) work environment and doesn't simply refer to the general national circumstances, then an employee can refuse to attend the workplace. We note, however, that what constitutes a legitimate and concrete concern will vary from one situation to another and will depend on the level of escalation of the virus.
What are employers' obligations where offices are partially or fully closed?
There is no obligation for an employer to close its facilities where, for example, the Government has closed some its own departments. However, employers should take whatever measures are reasonable to mitigate the spread of the disease and keep employees safe.
If an employer closes its workplace, it is likely that employees will be entitled to their full salary for the duration of the closure. This is because it would be the employer's decision to close the business (and the non-performance of duties will in any event not be due to a cause attributable to the employees). Therefore, the failure to perform work would be at the expense of the employer.
However, employers may petition the state for a permit to reduce regular working hours within the company. If this request is allowed, the company is not required to pay employees their salary above the 'reduced' hours and employees may be eligible for state benefits.
Alternatively, employers can require employees to work from home to ensure the health and safety of their employees.
Where can employers and employees access local and national advice?
• RIVM website: https://www.rivm.nl/coronavirus/covid-19
• Dutch Government: https://www.rijksoverheid.nl/onderwerpen/coronavirus-covid-19