COVID-19, the disease associated with the coronavirus that has dominated global news in recent weeks, is being battled on many fronts with specific measures designed to reduce its effects.
Although the initial focus was on the areas where the virus is most active (for a list, see: https://www.rivm.nl/coronavirus/covid-19), attention has now shifted to the spread of the disease and whether people have been in contact with carriers and potential carriers.
For employers and companies, the virus poses serious challenges. Consider the employer's responsibility to ensure a safe working environment for all workers vis-à-vis the challenge of doing all possible to continue business operations. Given the special circumstances that companies are now in, employers have the possibility to claim compensation for employees who are temporarily unable to work. At the time this article was published, more than 130 employers had applied for compensation. How an employer should respond to the virus is partly determined by the GDPR and by the Working Conditions Act (WCA), which saddles employers with far-reaching obligations. As a result of the WCA, appropriate action is required, which should include:
introducing a clear policy within the organisation about the coronavirus;
identifying potential risks for employees;
implementing measures to reduce risks; and
providing adequate information to employees.
Employers and employees always favour clear rules within their organisations. Because of the fast-paced developments regarding the coronavirus, employees want to know whether they should stay home if they have visited a high-risk zone or have been in contact with someone who has visited an affected area. Employees may also ask companies whether they should stay at home if they are concerned about their health, even if it is not possible for them to work from home. We have already seen employees with existing travel plans seek permission from companies before travelling to certain areas.
Employee carrier of coronavirus?
Despite fears, an employer cannot simply allow employees to stay at home or to send them home unless there is justification, such as if an employee or someone he has been in contact with has visited an affected area or if an employee is showing symptoms of illness. In the latter case, our advice is to send these employees home immediately – or urge them to stay at home – and instruct them to contact the company doctor by phone, who can ask medical questions and make an analysis of the situation. In case of an infection in the work place, the employer is obliged to notify the Area Health Authority (GGD) and follow its instructions.
Not all employees can work from home due to the nature of their work or because they lack resources to do so. Nevertheless, if the employer decides to send employees home, these employees are entitled to their full salary whether they can work from home or not.
Although the Dutch Data Protection Authority (Dutch DPA) has explicitly stated that employers cannot draw any conclusions about individual employees on the basis of their travel data, the GDPR does not prevent employers from processing this data under certain circumstances. On the basis of the GDPR, the employer can process data on employee travel if it is necessary to protect his legitimate interests or the interests of its other employees. Under the WCA, the employer is obliged to identify hazardous circumstances and take risk-mitigating measures. Hence, the processing of employee travel data in this context may be necessary under the WCA.
According to Dutch DPA guidelines, it is not permitted in principle to ask employees to provide information about a possible coronavirus infection in connection with certain symptoms. The processing of such data is subject to additional restrictions. Under certain circumstances, however, the GDPR provides scope for the processing of data on the nature and cause of an employee's disease, if it is necessary to protect the vital interests of the employee. Consider an employee who has a condition that colleagues need to be aware of. In this case, data about the coronavirus, even when employees with symptoms have not been in an infected area, may be collected.
However, the Dutch DPA also states that an employer should not ask about the nature and cause of a disease when an employee reports ill. If the employee volunteers this information, the employer can not register or use this data to form an opinion on the employability of that worker. This is the responsibility of the company doctor, who, as previously noted, may ask the employee questions about his medical situation and can then provide the employer with relevant (and non-medical) information about the worker's employability.
Internal measures against contamination
In order to minimise the risk of contamination, many companies have already cancelled unnecessary travels and meetings. When travelling for work is unavoidable, the employer should take additional precautions such as providing instructions, materials and advice to help the employee to carry out these duties in a safe manner.
Through the intervention of a company doctor and without the need to share medical data, workers with fragile health can – under certain circumstances – inform their employer that they temporarily wish to work from home. If working from home is necessary and possible, the employee is entitled to payment of salary. The same applies when the company doctor advises that an employee should temporarily stay at home. If working at home is impossible and the risk of contamination at work is conceivable, certain workers may have a legitimate interest in staying at home, while receiving pay. In all cases, the advice of the company doctor should be heeded.
Employees who still wish to travel to affected areas increase the risk of infection for themselves and others. The employer, however, cannot prohibit an employee from travelling to such an area because the employer cannot intervene in the employee's private life. The employer may advise the employee, according to the recommendations of the Ministry of Foreign Affairs, not to travel to restricted countries. An employer could establish a policy stipulating that if an employee travels to an infected area, a period of at least two weeks of 'quarantine' applies after his return. In our view, the employee who is unable to return due to local quarantine can take additional days of vacation. The same applies if the employee cannot work and must stay home for a period of time upon his return.
Mapping risk and taking measures
Under the WCA, an employer must identify risks in the workplace and propose improvements. This is recorded in the risk inventory & evaluation document on which an employer is obliged to record information and instructions on these risks and the measures to mitigate them. Situations that can be dangerous are mapped out to reduce risks.
The employee should follow the employer's safety instructions. The works council plays a special role when new policies related to the coronavirus amend existing policies on working conditions. The works council must consent before these changes can be implemented. The time required to get consent may be overtaken by events surrounding the virus. Hence, the works council should be involved in a timely manner and asked to give due consideration to all new policies.
Information for employees
The employer is advised to appoint one permanent contact within the organisation for questions about work and the coronavirus. An HR official should be appointed to this role, whose responsibility is to actively inform employees about the organisation's policies on the coronavirus This HR/corona contact person can also serve as the liaison between employees and the company doctor and lend support to both employees and managers.
Reduction in working hours and other measures
Not all employers are able to arrange for work to be done from home. Because more and more companies are being forced to close down production, the economic consequences of the coronavirus are increasing every day. Employers who are able to substantiate that their business operations are declining by at least 20% due to the coronavirus can apply for a special permit from the Ministry of Social Affairs and Employment. This permit will allow them to introduce a reduction of working hours and apply at the UWV for unemployment benefits for their employees. To apply, fill in the form at this government website. If there is a further decline in business operations leading to a more permanent cancellation of jobs, the employer may apply for permission to give notice based on reduncy through the UWV.
Other measures that employers may take will depend in part on their collective agreements and working conditions. To mitigate costs, employers can issue leaves, instruct employees to work at other locations and second employees to other companies in virus-safe areas.
Our CMS Corona Legal Team is at hand to advise companies on legal questions surrounding the coronavirus and its impact. In addition, we will conduct a webinar on this topic on 12 March at 11 am CET that will include input from our commercial and employment law experts.