COVID-19: Guidance for Employers in the Netherlands

What is the current level of restrictions in the Netherlands?

On 19 May 2020, the Dutch government proposed a road map for the lifting of social restrictions imposed in response to COVID-19. Details of the current national restrictions are available here. Note that at regional or municipal level, additional measures may have been put in place. For instance, click here  for the restrictions within the municipality of Amsterdam.

Details of which businesses and venues are currently permitted to open as part of are available here. We note that additional restrictions may apply at a regional or municipal level.

From March 2020, the government’s recommendation has been for employees to work from home where possible. On 29 September 2020, the government reemphasized the importance of this recommendation and added that – for three weeks initially - all employees should work from home, unless it is necessary for them to perform their duties at the employer's premises. This is to be interpreted as '(strictly) necessary from a business perspective', i.e. critical for the business continuity. Details of employers’ health and safety obligations are set out further below, for those employees who cannot work from home. 

The Dutch government updated its advice against "all but essential” international travel and currently advises Dutch travelers to only visit ‘yellow travel advisory countries’ and to refrain from visiting ‘orange travel advisory countries’ as well as ‘red travel advisory countries’. Those having visited or travelled from/through a 'red' or 'orange' country are advised to self-isolate for 10 days upon return. A map outlining the color coding for all countries can be found here, and a more comprehensive overview can be found here. An overview of the self-isolating rules can be found here. 

What are employers' obligations in respect of COVID-19?

At the time of writing (28 October 2020), the Dutch government and the National Institute of Public Health and Environment (RIVM) are advising to work from home, unless it is necessary for employees to perform their duties at the employer's premises. This is to be interpreted as '(strictly) necessary from a business perspective', i.e. critical for the business continuity. Clear examples are staff directly engaged in: 

• the operation of Distribution Centres; 
• manufacturing; 
• Data Centres; 
• store personnel; 
• hospital staff; and
• COVID-19 test laboratories. 

Employers should consider this recommendation (i.e. working from home, unless working from the company’s premises is necessary) to be an obligation to facilitate employees to work from home (if possible).  It will very rarely be critical (for business operations) to have support staff on the premises. Further, arguments for allowing employees to work on the premises such as 'desirable social cohesion' or 'employee well-being' do not seem relevant to the Dutch government’s advice.

If there are any infections amongst employees, that can be traced back to the company's premises, the government may shut down the premises for 2 weeks.

Health and Safety

Under the Dutch Working Conditions Act and the Dutch Civil Code, all employers have general 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. However, we note that the extent of such obligations is to some degree vague and depends on the developing situation. 

In respect of employees who work from home, under the general health and safety obligations, employers remain fully responsible for providing and maintaining a healthy and safe work environment. Pursuant to this, employers should in principle provide their employees with (among other things) an ergonomic desk and chair, a proper monitor, keyboard and mouse. 

In respect of employees who continue to perform their duties at the employer’s premises, under the general health and safety obligations, employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection at the workplace. Employers should enforce ‘social distancing’ on the work floor (e.g. 1.5m distance between employees). 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; and
• 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.

Additionally, the Dutch government and the RIVM are advising (among other things) individuals to get tested  if they have one or more of the following symptoms: 

We therefore recommend employers advise their employees of the above.  For more information on testing as well as guidance following the outcome of the test, click here. 

Additionally, employers should ensure that they are taking any necessary steps to protect their employees. 

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 for doing so (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 in the crossover between data privacy and employment law.

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.

On 20 March 2020, the EDPB (the European data protection advisory body, formed of representatives of national data protection authorities) published a formal statement in relation to COVID-19.  In relation to whether an employer can disclose that an employee is infected with COVID-19 to their colleagues, the EDPB advises that this should be done only where necessary (e.g. in a preventive context) and where national law allows this. In such case, the concerned employees shall be informed in advance and their dignity and integrity shall be protected. 

In the Netherlands:

• The processing of 'health data' by employers is highly restricted.
  
  
• 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 as 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?

Infected employee

If an employee has been diagnosed with or is suspected to have contracted the virus, then the employer will have reasonable grounds to instruct them to stay at home. It is probable that this employee would be quarantined on state/doctor’s orders regardless. Employees will be entitled to paid sick leave or paid leave, as per contractual terms or, absent those, statute.

If an employee has been infected with the virus, the municipal health service (GGD) will initiate contact tracing. If the employee has worked at the employer’s premises shortly before receiving a positive test result, one may assume that the employer and/or employees will be contacted by the municipal health service (GGD) as well. The municipal health service (GGD) may advise on (among other things) implementing preventive measures following a positive test among the workforce.

Refusal to work or attend work

Employees can refuse to attend work if they have a 'legitimate and concrete concern' of contracting or spreading the virus. This will vary from one situation to another and will depend on the level of escalation of the virus, but the employee cannot simply refer to the general national circumstances. Rather, the legitimate or concrete concern must directly relate to: (i) the (physical) work environment; (ii) the use of necessary means of (public) transport to attend work; and/or (iii) other personal circumstances (e.g. the employee’s spouse is a medical doctor).

This may also be affected by the necessity of the employee attending the regular workplace, for example, ‘vital professions’ are generally expected to continue their activities. In contrast, if the employee can perform his duties at home, it is more likely that their concern should be considered ‘legitimate and concrete’.

What are employers' obligations where offices are partially or fully closed?

If the employee cannot perform their duties for reasons relating to the COVID-19 virus (other than being sick, in which case, the employee shall be entitled to sick leave pay), prima facie the employee shall remain entitled to regular pay, but this is a grey area and very much in flux. One of the factors will likely be the extent to which the employer is responsible for the employee not performing their duties (e.g. voluntary shut down). Conversely, in the event of a state-induced mandatory shut down, it is conceivable that the company would not be obliged to continue paying salaries. The answer to this question will also depend on whether the employer qualifies for NOW Compensation (see below).

What measures have been taken to support employers during this crisis? 

'NOW'

In March 2020, the government adopted the “Temporary Emergency Bridging Measure for Sustained Employment” (Tijdelijke Noodmaatregel Overbrugging voor behoud van Werkgelegenheid) (“NOW”), offering companies an aid package aimed at compensating employers’ wage costs over certain subsidy periods (rather than a scheme allowing the reduction of working hours). The amount depends on the drop in revenues suffered by the company. 

At the time of writing, the government has announced the third aid package (“NOW 3.0”), which is yet to be adopted. 

Below, we cover all NOW aid packages adopted or announced at the time of writing, i.e. NOW 1.0, NOW 2.0 and NOW 3.0, all of which remain relevant.

The first aid package provides compensation of the employers’ wage costs over the period March, April and May 2020 (“NOW 1.0”). As of 6 June 2020, applications for NOW 1.0 can no longer be submitted. The below information, which provides a high-level overview of the relevant terms and conditions of the scheme, however remains relevant in respect of the actual entitlement to NOW 1.0 Compensation. 

• if revenues drop by 100 per cent, employers will be compensated for 90 per cent of the employers’ wage costs; and
  
  
• if revenues drop by 50 per cent, the employer will be compensated for 45 per cent of the employers’ wage costs (i.e. the level of compensation of employers’ wage costs is equal to 90 per cent of the percentual drop in revenues).

Compensation for each individual employee’s wage is capped at EUR 9,538 (gross) per month. Further, if the employers’ average wage costs per month during the compensation period is less than the employers’ wage costs in January 2020, the level of compensation will be reduced by the decrease in employers’ wage costs. Lastly, if the employer does not fully meet its obligations under the NOW 1.0 scheme, their application may be rejected (to the extent relevant, with retro-active effect) or a lower entitlement to compensation may be provided (e.g. in case the employer petitions the Employment Tribunal for permission to issue notice of termination on ETO Grounds).

The government will make an advance payment for 80 per cent of the estimated amount of compensation based on the expected/forecasted drop in revenues and the employers’ actual wage costs in January 2020, to be paid in a maximum of three instalments. After expiry of the period for which the NOW 1.0-compensation has been granted, a final settlement will be made, and any remaining compensation will be paid (if applicable). The level of the remaining compensation – if any – will depend on (among other things):

• the actual drop in revenues compared to the expected/forecasted drop in revenues;
  
  
• the employers’ average wage costs per month during the period for which the employer receives compensation, compared to the employers’ wage costs in January 2020;
  
  
• whether or not the employer met all other conditions under the NOW scheme (e.g. did the employer petition the Employment Tribunal to dismiss employees on ETO Grounds?); and
  
  
• submission of a statement by an external auditor on the actual drop in revenues (required if the advance payment exceeds EUR 100,000 and/or the actual entitlement to NOW Compensation exceeds EUR 125,000). If an external auditor’s statement is not required and the advance exceeds EUR 20,000 and/or the actual entitlement to NOW Compensation exceeds EUR 25,000, a similar statement from another professional third-party (e.g. an employers’ association or a financial advisor) is required.

NOW 2.0

On 22 June 2020, the Dutch government adopted a four month extension of the NOW Scheme, providing compensation for the employers’ wage costs over June, July, August and September 2020 (“NOW 2.0”). As of 1 September 2020, applications to NOW 2.0 Compensation can no longer be submitted. The below information, however, remains relevant in respect of the actual entitlement to NOW 2.0 Compensation.   

NOW 2.0 shows great resemblance to NOW 1.0, and as such the information provided above remains relevant, albeit with certain exceptions. A short summary of NOW 2.0 is provided below.

The eligibility criteria under NOW 2.0 is similar to that of NOW 1.0, i.e. a drop in revenues of at least 20 per cent, albeit under NOW 2.0 in a four month consecutive period between 1 June 2020 and 30 November 2020, compared to a third of the 2019 annual revenues (i.e. representing revenues over a four month period). We note that this was one quarter under NOW 1.0, given that the subsidy period was three months under the previous scheme. Different methods to establish the drop in revenues may apply, e.g. for startups and companies that recently acquired or divested a business.

The following obligations (among others) apply to employers, in addition to those that already were applicable under NOW 1.0

• refraining from petitioning the Employment Tribunal to request permission to issue notice to employees for ETO Grounds. If this occurs, the level of NOW 2.0 Compensation will be reduced by 90 per cent of the March 2020 employers’ wage costs for the relevant employee (the employee for whom the employer petitioned the Employment Tribunal), multiplied by 3. We note that this sanction is lower than under NOW 1.0;
  
  
• if the employer contemplates dismissing 20 or more employees within a rolling three month period and therefore (i) notifies the relevant trade unions pursuant to the Collective Dismissal Notification Act, and (ii) petitions the Employment Tribunal on ETO Grounds during the subsidy period, an additional 5 per cent reduction will be applied to the level of the NOW 2.0 Compensation. This reduction will not occur if the relevant trade unions consent to the redundancies or, absent such consent, if the employer and the relevant trade unions jointly petitioned the Labour Foundation (a committee in which employers' associations and trade unions are being equally represented; Stichting van de Arbeid) to assess the necessity of making the redundancies;
  
  
• investing in employee mobility/employability (e.g. through training programs); and
  
  
• if an external auditor’s statement is required (i.e. if the advance payment exceeds EUR 100,000 and/or the actual entitlement to NOW 2.0 Compensation exceeds EUR 125,000), the applying company should provide a statement that the applying company will:
  • refrain from payments/grants to (certain categories of) Executives e.g. bonuses / profit distributions / LTI. This obligation seems to include payments made by the applying company to Executives of the ultimate parent company or another parent company within the group, if the applying company is part of a wider group of companies. The obligation relates to e.g. bonuses / profit distributions / LTI in respect of the calendar year 2020 only (i.e. not to bonuses granted over 2019 and paid in 2020); 
  • refrain from paying dividends to its shareholder(s) in 2020 and in respect of the (financial results in the) calendar year 2020; the obligation excludes among others payment of dividends over (and thus in respect of) the calendar year 2019;
  • refrain from repurchasing shares in 2020 and in respect of the (financial results in the) calendar year 2020 (e.g. in the general meeting of shareholders in which the 2020 annual accounts will be adopted).  

The sanction for breaching any of the above obligations is reduction of the NOW 2.0 Compensation to nil.

On 9 October 2020, the Dutch government adopted an extension of the NOW Scheme (“NOW 3.0”). 

NOW 3.0 will again provide compensation for employers’ wage costs, this time over the period from 1 October 2020 up to and including 30 June 2021, thus covering nine months. NOW 3.0 consists of three (3) tranches / time periods, i.e. October up to and including December 2020 (“Tranche 1”), January up to and including March 2021 (“Tranche 2”) and April up to and including June 2021 (“Tranche 3”). The terms and conditions vary from one tranche to the other and eligible companies should apply separately for each tranche. In the table here, we capture the key information available at the time of writing. For reference, we also included the relevant T&Cs under NOW 2.0, such that the changes from NOW 2.0 to NOW 3.0 are clearer.

Other measures

Click here for an overview of other supportive measures, e.g. to compensate businesses to cover their fixed charges (other than employers’ wage costs) as well as postponing tax payments.

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
  
  
• Netherlands Enterprise Agency, RVO (on e.g. aid packages): https://business.gov.nl/corona/overview/the-coronavirus-and-your-company/
  

• Netherlands Chamber of Commerce/ Dutch government – FAQ for Entrepreneurs: https://business.gov.nl/corona/overview/the-coronavirus-faq-for-entrepreneurs/
• Institute for Employee Benefits UWV (on NOW, in Dutch): https://www.uwv.nl/werkgevers/overige-onderwerpen/now/index.aspx