In the Netherlands, the reality of the coronavirus is that we need to deal with it. Decisions must now be taken within all organisations, but how?

That is why this document contains these considerations for employers, employees and the Works Council.

– klik hier voor de Nederlandse versie van deze tekst –

As a company and as a Works Council, you must prevent employees from becoming ill. You must also prepare for issues such as a stop in deliveries and government measures. 

The Works Council Act (WOR) does not have an emergency scenario that overrides the rights of a Works Council. Other legislation for Works Councils, such as the Working Conditions Act, also do not have such scenarios. If the Director (Bestuurder) intends to make a decision that affects the rights of the Works Council, they must follow the regular advice or approval process. 

In this article, we will list several situations that may arise from the coronavirus*. We will discuss the roles and/or obligations of the employee, the employer and the Works Council, as well as the consequences for these three groups. These are all things that all organisations in the Netherlands may have to deal with in the short term. It is best to be prepared.

situation:
preventing employees from getting ill

employee tips

• The organisation may announce a particular occupational health and safety (OH&S or ‘arbobeleid’ in Dutch) policy with ‘appropriate measures’. 
• You are required to comply with all occupational health and safety measures. 
• Sanctions can be imposed if you do not comply with occupational health and safety measures.
• If you work abroad in a place where the coronavirus has been detected, you can be called back to the Netherlands.

employer tips

• A good occupational health and safety (OH&S or ‘arbobeleid’ in Dutch) policy for employees is mandatory.
• A good OH&S policy should (also) be aimed at preventing employees from becoming ill.
• Employees working abroad in a defined coronavirus zone should be called back and/or the work should be stopped if there is an increased risk.
• Compliance with the OH&S policy must (always) be monitored.
• Compliance with/implementation of OH&S policy/rest periods should be discussed with the Works Council (in cooperation with the prevention officer).
• In the event of non-compliance with the OH&S policy, appropriate sanctions may be imposed.
• All changes in the occupational OH&S policy or absenteeism policy are subject to approval by the Works Council.
• Any reorganisations are still subject to approval.

In this situation, the OH&S policy can be extended to include special policies to prevent coronavirus infection. These include disinfection, face masks, a ban on shaking hands, additional cleaning, limiting meetings, compulsory working from home, cancelling meetings (with large groups), etc. The particular policy also includes information (What is the coronavirus? How does it start? How is it transmitted? What should you do when you are ill?).

Based on Dutch rules and regulations: Working decisions act, Working decisions decree, being a good employer art. 7:611 BW (all link to Dutch legal texts) 

Works Council considerations

For changes/improvements of the OH&S policy or the absenteeism policy, an approval request must be submitted to the Works Council. Compliance with/implementation of the OH&S policy/rest periods should be discussed with the Works Council, in cooperation with the prevention officer and, if necessary, the occupational health and safety service. Consultation is mandatory in case of reorganisation. The Works Council also has to ensure that employees adhere to OH&S policy and the rest periods.

TIP: Additional agreements in the staff manual or staff regulation cannot (usually) be changed without the approval of the Works Council. 

Based on Dutch rules and regulations: Article 25 WOR, Article 27 WOR, Article 28 WOR, Working conditions act Article 12, Working conditions decree (all link to Dutch legal texts) 

situation:
an employee is (suspected to be) ill

employee tips

•  If the employer suspects that you are ill or may be infected with the coronavirus, you may be asked to work from home, to protect your colleagues.
• If you are not ill, but you have to stay at home, your full wage has to be paid, even if you cannot work from home.
• You cannot ‘just’ decide to stay at home if you suspect you are infected with the coronavirus.
• If you are ill, you should always report this according to the organisation’s absenteeism procedures.
• If you report your absence due to (suspected) coronavirus, you may only contact your supervisor, GP or company physician by telephone.  

employer tips

• An employee suspected of being infected with the coronavirus may be asked to go home or stay at home.**
• Employees who are not ill but are at home at the employer’s request must receive full pay.
• The employee may be asked to work from home or to perform alternative tasks at home.
• As an employer, you are not allowed to check whether an employee is ill; this is a violation of privacy (more about checking: ‘Can I check my employees for the coronavirus?’)

**basis for suspicion could be: 

• the employee has visited an area where the virus is prevalent or has been in contact with people who have the virus
  the employee has a fever, a cold or a cough
• the employee indicates that they have symptoms of illness 

Based on Dutch rules and regulations: Working conditions act, Working conditions decree, Instructions act art. 7:660 BW, not performing work in a high-risk setting art. 7:628 BW, payment of wages in case of illness art.  7:629 BW (all link to Dutch legal texts) 

Works Council considerations

For changes/improvements of the OH&S policy or the absenteeism policy, an approval request must be submitted to the Works Council. Compliance with/implementation of the OH&S policy/rest periods should be discussed with the Works Council, in cooperation with the prevention officer. The Works Council must also ensure that employees adhere to the OH&S policy and the rest periods. 

Tip: Additional agreements in the staff manual or staff regulation cannot (usually) be changed without the agreement of the Works Council. 

Based on Dutch rules and regulations:Article 25 WOR, Article 27 WOR, Article 28 WOR, Working conditions act Article 12, Working conditions decree (all link to Dutch legal texts) 

situation:
shorter working hours because no or less work can be done

employee tips

• Raw materials/machines/products are not supplied, many of your colleagues are ill, or there’s another direct coronavirus-related cause: as a result, there is no or less work.
• The employer can apply for a reduction in working time in increments of six weeks, up to a maximum of 24 weeks.
• You will work fewer hours and receive the same salary; the employer will receive an unemployment benefit (WW).
• The WW benefit is at the expense of your regular WW rights as an employee.

employer tips

• There is currently less work, and at least during 2 to 24 weeks, there is at least 20% less work.
• In that case, a permit for shorter working hours might be obtained from the Ministry of Social Affairs and Employment
• In case of a request for shorter working hours, the Works Council must give its approval before the application is sent to the Ministry.

In case of a working hours reduction, certain conditions apply for the employee and the employer. You can read more about this in the Van de Voort Advocaten | Mediators whitepaper.

Based on Dutch rules and regulations: Policy rules exemption: prohibition of working hours reduction 2004 

Works Council considerations

A reduction in working hours is a decision that requires approval. Before a reduction in working hours is requested from the Ministry (proposed resolution), a request for approval must be submitted to the Works Council.

Tip: (additional) agreements in the staff manual or staff regulation about working hours should not be changed without the approval of the Works Council. 

Based on Dutch rules and regulations: Article 27 (1) (b) WOR (analogous to HR 26 June 1987, NJ 1988, 93) (all link to Dutch legal texts) 

situation:
if the government sets up mandatory quarantine

employee tips

• You cannot refuse mandatory quarantine imposed by the government.
• You will get your regular salary paid.
• The hours not worked will not be deducted from your vacation days/hours 

employer tips

• Salaries must be paid.
• This is considered an entrepreneurial risk, and there is no financial aid scheme from the government unless the reduction in working hours applies.
• Quarantine updates: GGD (Municipal Health Service),the RIVM (National Institute for Public Health and Environment) and the Dutch Society of General Practitioners.

Works Council considerations

An advice request is required for hiring groups of workers to replace the employees who are absent in large numbers. If a new credit has to be raised due to financial setbacks from the virus, a request for advice must also be submitted to the Works Council. A significant work reduction and termination of (part of) the work itself are also subject to approval, as is the case for a reorganisation.

Based on Dutch rules and regulations:  Article 25 WOR, Article 27 WOR, Article 28 WOR (all link to Dutch legal texts) 

situation:
the employee has family members who are ill

employee tips

• You can apply for short-term care leave to take care of your child, partner or parent who has become infected.
• You can apply for short-term care leave for direct family members in a nursing home or hospital that are not cared for because of the mass absenteeism of nursing staff.
• You can apply for emergency leave if your child care facility or primary school is closed and the children are therefore at home without any form of care.
• During the care leave, you are entitled to a salary payment for up to 2 weeks (per year); during emergency leave, this applies to a ‘short period’.
• If the care period or emergency lasts longer, you must use vacation days or take unpaid leave (according to the organisation’s agreements)

employer tips

• Request of leave and payment of the employee will take place per the emergency leave policy (brief leave of absence) brief care leave.
• If the situation is prolonged without a solution (more than 2 weeks per 12 months), the employee must use their vacation days or take unpaid leave.
• Adjustment of the staff manual or staff regulations (including, for example, additional agreements on emergency leave or short-term absenteeism) is subject to approval by the Works Council.

Based on Dutch rules and regulations: Necessary care for another person; short-term care leave art. 5:1 Labour and Care Act, calamities and other short absenteeism, art. 4:1 Labour And Care Act (all link to Dutch legal texts) 

Works Council considerations

The organisation may have additional arrangements regarding (taking) care leave that are documented in the staff manual or staff guide (e.g. employment conditions or absenteeism). In that case, changes or modifications are subject to approval.

Based on Dutch rules and regulations: Article 25 WOR, Article 27 WOR, Article 28 WOR (all link to Dutch legal texts) 

in summary, the Works Council has a task to perform!

If a policy has to be adapted or intensified because of the coronavirus, this is still a policy adjustment that requires consultation with the Works Council. Many issues require advice or approval.

Of course, this situation requires urgency, and the Bestuurder may also expect swift decisions from the Works Council. The Bestuurder can assist by (temporarily) freeing Works Council members from other work in the organisation. But also by promoting or making available digital consultation methods; think of Skype, MS Teams, conference calls and of course e-mail.

*Where it says coronavirus, this refers to the COVID-19 virus.

This article is based on the whitepaper “Arbeidsrechtelijke en medezeggenschaprechtelijke aandachtspunten Coronavirus’’ written by Mr Drs.Stefan Jansen at de Voort Advocaten | Mediators.  

These special times call for thoughtfulness and decision-making on matters that we have not had to consider before. For your convenience, we’ve collected several articles that might be useful now:

• coronavirus: situations and considerations for the Works Council [just read]
• Vacation days in times of corona: what are the options for employers and employees?
• ‘General management has decided that our salary will be reduced. Is that allowed?’
• ‘pressure cooker’ advice or consent: because sometimes that’s what is required

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Questions? Contact us directly via our contactform or call assistant Elma Harmans op 040-2813128.

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Note: Please note that we are a Dutch organisation and that all our information is originally composed in Dutch. For the benefit of our English-speaking customers we have translated some of our online information. We are still in the process of translating even more of our information. It could therefore be that you will come across Dutch pages on CT2.nl. Please contact us if you would like more information.