Employers in severe weather due to coronavirus?

23 maart 2020 | Door:  Barry Scheer

The Netherlands is disrupted now that the corona virus is also present here. On the one hand, all kinds of individual circumstances immediately arise between employers and employees. On the other hand, the government takes measures that require entire sectors of employers to completely or almost completely cease their activities. This also means that in principle personnel can no longer be deployed, but are still entitled to salary. In this column we provide information about the most common situations. We will do this below on the basis of statements or questions.

It now happens that employees cannot take their children to day care or school because of temporary closure:

Art. 4 of the Work and Care Act gives employees the right to take emergency leave in this case. The employer must continue to pay the usual wages over this time in full. The employer may require the employee that this unforeseen circumstance lasts as short as possible and that the employee arranges a solution immediately. What is reasonable depends on circumstances. There may be deviating agreements in a valid collective labour agreement (in Dutch: cao). If necessary, the employee can use vacation days for a longer-lasting situation. As long as the child is not ill, there is no entitlement to short-term care leave in accordance with art. 5 from the same law.

Occasionally, an employee is afraid to come to work because of fear of being contaminated at work:

As long as it is clear that the workplace does not pose a risk of contamination (and the employee cannot prove the contrary), there is no reasonable ground for the employee not to fulfil the obligations of the employment contract. Employers can take all kinds of actions to secure the workplace. In this context: do you have a current RI&E?.

Employee cannot come home from his holiday address due to corona. Should the employer continue to pay the wages?

At first, the situation appears to be force majeure for the employee. Employer is obliged by law to continue to pay the usual wages. If it is clear to an advanced degree that force majeure is limited, the employer does not have to continue to pay the wages. For example, if the employee consciously travels to a contaminated area with 'negative travel advice' and if the employer announced before leaving that he will not tolerate this.

Employer wants to refuse holiday to the employee, because of an infected destination:

Once a holiday has been established (if the application has not been contradicted), an employer can no longer simply cancel. If the employee does not want to cancel the trip himself, in consultation it is possible that the employer will nevertheless require this from reasonable, compelling business interests and in order to comply with legal obligations. However, the employer will then have to offer the employee a new holiday period and possibly also compensation for his costs.

Employee fell ill by corona during her holiday stay:

From the day that this is reported by the employee, the period of holidays stops immediately and the continued payment of wages due to illness will start. The employer may require the employee to be examined medically on location and thereby "prove" the disease. The next question may be whether the employee breaks off the holiday and comes home for mandatory reintegration activities, or whether he wants to continue the holiday. In the latter case, the holiday can also be resumed (new holiday days), whereby the employee is still free from the reintegration obligations during the leave.

Employer requires employee's cooperation with regard to deviating work procedures, and vice versa:

Art. 7: 611 of the Dutch Civil Code stipulates: The employee must accept reasonable requests from the employer and act as a ‘good employee’. Cancelling appointments and events, working from home or working to different locations will be customary. If circumstances arise as a result of which the employee no longer meets certain expectations, the employer will also have to act as a 'good employer'. In these circumstances, employer and employee must come together, taking into account both principles. If necessary, consult a personnel consultant or lawyer.

What if an employer as such suffers in any way in its organization from corona?

At the time of publishing this content, we can only inform about the current state of affairs. Until March 18, 2020 and on the basis of the short-time working scheme (in Dutch: werktijdverkorting (WTV)), employers could apply for compensation of continued salary payments for non-employable working hours by corona. If employees are unable to work or can only work to a limited extent, due to stagnation in processes, in certain circumstances they can be (partially) sent home with pay. The allowance would first be determined on the basis of the "hours lost".

However, on 17 March, the government immediately terminated this scheme and instead introduced the temporary measure Emergency Fund Bridging Employment (in Dutch: Tijdelijke Noodmaatregel Overbrugging voor Werkbehoud (NOW)). This measure thus immediately replaced the short-time working scheme.

Under the new measure, employers can apply for a ‘substantial contribution towards labour costs’ and receive an advance for this. For example, employers can retain and pay staff with a permanent and flexible contract. On-call workers are also included, as far as we know now. Temporary employment agencies can also apply for compensation for temporary workers. To begin with the allowance can be applied for three months (the months March, April and May), with maybe extension (under the same or other conditions) by another three months. Consultations are currently being held with the Dutch authorization of social security (in Dutch: UWV) about the implementation of this measure.

The main features of this measure are already known. It is no longer possible to request the old procedure. If the employer has already received an approval for this, this permit will remain in force. If he uses the working time reduction permit and wants an extension afterwards, he must use the new scheme. If the employer has submitted an application, but has not yet received an approval, the application for a reduction in working hours is considered an application for the new allowance scheme NOW. UWV will request additional information from the employer, although at this moment we don’t know yet what information. The new measure for compensation of labour costs is completely separate from the exemption from the Unemployment Insurance Act (in Dutch: WW).

With the application, the employer commits in advance to the obligation not to apply for dismissal on grounds of economic reasons for his employees during the period for which the allowance is received. In addition, the applicant expects at least a 20 percent loss of turnover. The measure concerns loss of turnover from 1 March 2020. The amount of the wage costs allowance depends on the drop in turnover, a maximum of 90 percent of the wage bill. Below are some examples of how the relationship between the decrease in turnover and the amount of the allowance works out:

• if 100 percent of the turnover is lost, the allowance will be 90 percent of the salary of an employer;

• if 50 percent of the turnover is lost, the allowance amounts to 45 percent of the salary of an employer;

• if 25 percent of the turnover is lost, the allowance will amount to 22.5 percent of the employer's salary.

On the basis of the application, UWV will provide an advance of 80 percent of the expected contribution. It is subsequently determined what the actual decline in turnover has been. An audit report is required for applications exceeding the amount of the allowance to be determined. When the allowance is finally determined, an adjustment will still be made if there has been a decrease in the wage bill. As it appears, the applicant needs a digital channel, where registration of E-recognition (in Dutch: eHerkenning) is required. This registration takes some time. If you intend to apply for the above compensation and you do not yet have an E-recognition, please request this immediately.

The Personnel department of Alfa Accountants & Advisors can assist you in this application, as well as answering the above and similar questions.