Vacation days in times of corona: what are the options for employers and employees?

Employees and employers have many questions, for example, about vacation days. Because there is temporarily less work, some employers want employees to take up their vacation days now. However, many employees prefer to use their vacation days when they can actually travel to go on vacation. What is and isn’t allowed according to the rules?

– klik hier voor de Nederlandse versie van deze tekst –

In this article, we have collected several situations that are now occurring. We will explain this in more detail. But first of all, to clarify matters, let us provide you with an overview of the rights and obligations. When taking vacation days, several parties are involved: not just the employer and employee, but also the unions and your organisation’s Works Council.

rights and obligations of the employee and employer

As an employee, you are entitled to vacation days/hours. The number of days or hours is laid down in the laws and regulations, the collective labour agreement (cao), the staff regulations and/or individual employment contracts. These documents often also include the procedure for using or requesting vacation days/hours.

There are four types of vacation days/hours:

Statutory vacation days/hours
4 weeks per year = the average number of hours per week x 4
Non-statutory vacation days/hours
what was agreed in collective labour agreements or staff regulations for more days/hours than is legally required.
Leave days
for example, long-term care leave or additional maternity leave
Overtime, additional hours, compensation hours, reduction in working hours (adv), shorter working hours (atv)
other days/hours off

A brief explanation and background of the rights and obligations:

statutory and non-statutory vacation days ↓

In the Netherlands, employees are legally entitled to vacation time: 4x the number of hours the employee works per week (Articles 634 up to and including 645 of the Dutch Civil Code, book 7). In other words, every employee in the Netherlands is entitled to 4 weeks’ vacation time per year. During the vacation days, the employer is required to pay the employee full wages.

Additional days/hours may be agreed on in the collective labour agreement, the staff regulations and/or individual employment contracts. These are called ‘non-statutory’ vacation days.

vacation days expire after 6 months ↓

The statutory vacation days expire 6 months after the calendar year in which they were accrued. On 1 July, the statutory vacation days accumulated in the year before will expire, except when the employee and employer agree that the validity of the vacation days is extended, or if the employee, for example, due to illness, has not been able to use the vacation days.

Non-statutory holidays are valid for 5 years. This allows the employee to take them into the next years or save them for several years.

collection of vacation days for maternity leave and/or illness ↓

During maternity leave or long-term care leave, but also during illness, the employee accrues vacation hours. Other arrangements may apply to the accruement of non-statutory vacation hours during illness (as laid down in the collective labour agreement or the staff regulations).

request/reject/recall vacation days ↓

The employee must submit a written request to the employer when they want to use their vacation days. The employer is legally obliged to respond within 2 weeks. If the employer does not respond, the request is by definition approved.

The employer may refuse the request if the vacation request causes ‘major problems’ for the organisation, for example, because everyone in your department wants to take vacation time at the same time.

The employer may also move the approved vacation – after consultation with the employee – if it causes ‘major problems’ for the organisation. However, in that case, the employer must reimburse the employee for any expenses (e.g. a trip that has already been booked).

reduction of working hours (adv days) ↓

Adv stands for a reduction in working hours (sometimes referred to as atv or shorter working hours). This is a scheme where the employee works more hours than agreed, or less. In both situations, we call it adv (or atv), but only in the first case will the employee get a number of extra days off.

As with vacation days, the employee usually determines when they use the adv days and submit a request to the employer. The law does not have any adv scheme. It is therefore entirely dependent on what the collective labour agreement, the staff regulations or the employment contract includes in this respect.

Adv hours usually have a validity of one quarter. In other words, the employee must use them as days off within 3 months after they have been accrued. The validity period in your case is stated in the collective labour agreement, the staff regulation or the employment contract.

overtime ↓

Overtime occurs when the employee works more hours than agreed in the employment contract during a week, at the employer’s request. It is legally stipulated that overtime for people with a minimum wage must always be paid if they still fall below the statutory minimum wage with their overtime. An exception is possible if this has been established in the collective labour agreement and agreed on by the employee. In that case, the overtime can be ‘paid’ in compensation hours. These compensation hours must be used no later than 1 July of the following year. If this does not happen, the employer must pay the overtime in the first salary payment run after 1 July.

NOTE that if an employee is working for 3 months continuously, this employee may demand a contract increase. Employers can try to avoid this by pre-determining the reason/duration of the overtime (temporary contract increase).

The agreements on overtime (pay-out, time-for-time, saving and using overtime, overtime allowance, etc.) are laid down in the collective labour agreement or in the individual employment contract. In some cases, it has been agreed that overtime ‘is part of the job’ and is therefore not recorded or paid.

collective labour agreement, staff regulations or individual employment contract ↓

The employer has been involved in the agreements and rules on vacation days/hours and other types of days off. These agreements are laid down in the law and collective labour agreements and/or the staff regulations and/or the employee’s individual employment contract. There is an ‘order of precedence’: first, the agreements in the collective labour agreement apply, then the agreements in the staff regulations and then the agreements in the individual employment contract.

What kind of agreements or arrangements about vacation days are we talking about? The following elements are usually documented in the collective labour agreement, the staff regulations or individual employment contracts:

number of vacation days (by age category)
number of days that may be used consecutively
saving up vacation days
mandatory leave (e.g. one day between the holidays)
company closure (e.g. construction industry holiday or between Christmas and New Year’s Day)

cao (collective labour agreement) ↓

The agreements laid down in the collective labour agreement have been made between employers (representations) and the trade unions.

If the employer (or the trade union) wants to adjust the agreements during the term of the collective labour agreement, discussions must be held, and they must reach a decision together. Until there is a jointly agreed decision, there can be no changes to the rules/regulations.

staff regulations ↓

The agreements in the staff regulations are often agreed between the employer and the Works Council.

In that case, they must enter into consultation and come to a joint decision to amend agreements in the staff regulations. Until there is a jointly agreed decision, there can be no changes to the rules/regulations.

This may be different if the staff regulations have not been approved by the Works Council. In that case, the Works Council will have the right of consent if the vacation day arrangement changes (Art. 27 WOR, section 1b “a working and rest period scheme or a vacation time arrangement”).

individual employment agreement (contract) ↓

The individual employment agreement (the contract) contains at least what is stated in the collective labour agreement and/or the staff regulations, plus any additional agreements the employee has made with the employer.

In principle, such individual employment contracts cannot be adjusted unilaterally by the employer or employee; they must agree on changes in the individual employment contract.

situation: the employee wants to cancel vacation days

The employee has requested vacation days. The employer has approved this request, but now the employee intends to cancel the vacation days.

The case-law on this matter varies. The change can take place in any case if both employer and employee agree. If the employer does not agree, the employee seems to be entitled to cancel the vacation day request. However, if the employer has valid serious reasons, the employee can be made to take the vacation days after all.

NOTE that since the case law varies, we advise you to reach an agreement.

If the agreements on vacation days are recorded in the collective labour agreement, the employer can also propose alternative (temporary) adjustments for the inclusion of vacation days to the trade unions. Any changes can only take place if both employer and employee agree.

If the agreements on vacation days are laid down in the staff regulations, the employer may propose an alternative (temporary) adjustment to the Works Council. The Works Council is likely to consult with the rank and file to gauge the views of the employees. Any changes can only take place if both employer and Works Council agree.

situation: the employer wants to make the use of vacation days mandatory

Regardless of whether an employee has any vacation days left or has requested vacation days: the employer wants all employees or groups of employees to use their vacation days at a specific time.

The employer cannot decide to modify or change the arrangements made for vacation days. It may be that the conditions in the collective labour agreement state how the employer can set up a company closure for holidays or compulsory holiday closure.

If nothing has been included about this in the collective labour agreement, it is a subject for which the employer must seek the approval of the Works Council. This is governed by the Works Councils Act (Art. 27 WOR, section 1b “a working and rest period scheme or a vacation time arrangement”). Even with the agreement of the Works Council, employees do not have to use their vacation days if they do not want to.

situation: the employer wants to make the use of adv days mandatory

In the collective labour agreement, the staff regulations or the individual employment contract, it is agreed how adv days are accrued and how they are used by the employee. The employer wants to make the use of adv days mandatory.

Just as the employer cannot decide to adjust or modify the agreements on vacation days (once), the agreements on adv days cannot be altered unilaterally, even if nothing has been laid down.

The employer must comply with the agreements made in the collective labour agreement or with the Works Council. If the agreements state that the employer determines how and when adv days can be used, the employer can force the employee to stick to this agreement. If there nothing about a situation like this in the agreements, the employer must consult the trade unions or the Works Council.

If the adv days/hours are recorded in the collective labour agreement, the employer must consult with the trade unions to make an exception to the collective labour agreement.

If the adv days/hours are regulated in the staff regulations, the employer must get approval from the Works Council. This is documented in the Works Councils Act (Art. 27 WOR, section 1b “a working and rest period scheme or a vacation time arrangement”).

situation: the vacation days from 2019 expire on 1 July 2020

Any vacation days the employee accrued in 2019 must be used by the employee before 1 July 2020. After that date, the unused vacation days expire; they no longer exist, and the employee cannot use them.

The rules are clear: the vacation days expire if no other arrangements are made. However, the employee cannot help it that they cannot use the vacation days to go on an actual vacation. They cannot fly abroad or take the caravan to the campsite.

There are two exceptions:

The employer agrees with the employee that the days will not expire.
The employee has not been able to take a vacation, for example, because they have not been given the opportunity to take a vacation or due to a medical issue.

TIP: It might be wise to use vacation days now, during this period of working at home. This means you do not have to sit at home with your laptop and be available for work. It may feel a little more relaxed without working from home.

situation: the employer wants to make the use of overtime hours mandatory

The organisation has an overtime arrangement: the employees get the overtime back in vacation hours. The employer wants the overtime hours to be used at a certain time or within a specified period.

Overtime occurs when the employee works more hours than agreed in the employment contract during a week, at the employer’s request.

The agreements on overtime (pay-out, time-for-time, saving and using overtime, overtime allowance, etc.) are laid down in the collective labour agreement, the staff regulations or in the individual employment contract. In some cases, it has been agreed that overtime ‘is part of the job’ and is therefore not recorded or paid.

The employer must comply with the agreements made in the collective labour agreement or with the Works Council. If there is nothing about a situation like this in the agreements, the employer must consult with the trade unions or the Works Council.

If the overtime or additional work days/hours are laid down in the collective labour agreement, the employer must consult with the trade unions to make an exception to the collective labour agreement.

If the overtime or additional work days/hours are regulated in the staff regulations, the employer must get approval from the Works Council. This is documented in the Works Councils Act (Art. 27 WOR, section 1b “a working and rest period scheme or a vacation time arrangement”).

be reasonable

The Works Council has rights and obligations. Sometimes, the Works Council has the right of consent or consultation. This particular situation in which we all find ourselves now requires unique solutions. Perhaps you, as a Works Council, understand very well that it is wise if everyone takes up one vacation day a week in the coming weeks, to name an example. Employees may also agree. But remember that you must, perhaps temporarily or only once, adjust the rules. This still requires a request for consent.

Dit is de box-titel

our advice

Our urgent advice is to always document changes in policy or regulations for the organisation; in this example, it is a request for consent to taking a mandatory day off every week. The Work Council’s response can be very brief: ‘agreed for period XX’. This response is a good record of what you have agreed and will prevent misunderstandings in the future.