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    Managing HR Through COVID-19

    A Practical Guide for Multinational Employers

    Prepared by Loyens & Loeff

    As at April 9, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    It has been prepared by Loyens & Loeff and is published with their kind permission. With thanks to:

    Loyens & Loeff  |  Hermine Voûte |   hermine.voute@loyensloeff.com  |   www.loyensloeff.com/en

     

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1. Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2. Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    3. Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    4. If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    5. One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1. Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • Those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • Those with health issues (known to the employer), such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g., increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2. Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e., “struggle through”.

    3. Update

    • Initiate a system to keep up-to-date with public health updates, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4. Travel

    • Prohibit or restrict employee travel and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at April 9, 2020

    1. What are an employer’s main legal obligations?

    An employer’s main legal obligations associated with COVID-19 in the workplace include the following:

    • On the basis of the Dutch Working Conditions Act, the employer is obliged to ensure that workers are informed effectively of the work to be carried out, the risks arising therefrom, and the measures intended to prevent or reduce such risks.
    • The Dutch Working Conditions Act and the employer’s general duty of care towards employees require employers to provide a safe working environment for employees, which includes protection against infectious diseases. It also follows from the Dutch Working Conditions Act that the employer should take specific measures with respect to specific threats to the health of its employees, such as strengthened hygiene rules (i.e. good ventilation, providing hand soap, etc.).
    • Employers should also follow the measures advised by the National Institute for Public Health and the Environment (“RIVM“) and the Dutch government and inform its employees about these measures. These measures are published online and more far-reaching measures may be announced in the coming days/weeks. It is therefore advisable for employers to check the websites on a daily basis.
    • Furthermore, it is advisable to consult the company doctor and/or arboservice (arbodienst) regarding appropriate company-specific measures and to discuss with the company doctor possible additional measures to be taken for vulnerable employees.
    • In addition, the employer could consider more general measures such as promoting teleworking, limiting unnecessary meetings and travel and eliminating business trips abroad.
    • The employer should in principle continue to pay the employee’s full salary.

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal obligation for employers to have a specific workplace COVID-19 response plan. However, the Dutch Working Conditions Act and the employer’s general duty of care towards employees require employers to provide a safe working environment for employees, which includes protection against infectious diseases. In this respect, it is advisable to develop a workplace plan dealing with workplace safety and health issues associated with COVID-19.

    3. What should a workplace COVID-19 response plan cover?

    A workplace COVID-19 response plan could deal with preparations to prevent the outbreak or, where there is an outbreak, measures to avoid the spread of the virus, what could happen during the outbreak and steps to be taken after the outbreak. In drawing up this plan, the measures announced by the Dutch government and RIVM should be taken into account. The most important measures announced are: everyone in the Netherlands must stay at home where there are complaints of rhinitis, coughing, sore throat or fever. Social contact must be avoided. Furthermore, everyone in the Netherlands is called upon to work from home as much as possible, unless the employee works in an essential service (e.g., in the field of healthcare, public transport, food chain, emergency assistance). As of March 16, 2020 until April 28, 2020, all schools (including childcare centres and universities) are closed. The same applies to restaurants (excluding take-aways), pubs, and sports clubs. As of March 24, 2020 until April 28, 2020, casinos are closed and hairdressers, beauticians and other professions where there is direct contact with persons are not allowed to do their work until April 28, 2020. There is a ban on events until June 1, 2020. All other meetings are prohibited until April 28, 2020. In addition, everyone is asked to stop shaking hands and to keep a distance of 1.5 meters from each other.

    More far-reaching measures or an extension of the measures may be announced in the coming days/weeks. It is therefore advisable for employers to check on a daily basis whether new measures have been announced.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    The Dutch government announced several measures to avoid the spread of coronavirus. Everyone in the Netherlands must stay at home where there are complaints of rhinitis, coughing, sore throat or fever. Social contact must be avoided. Furthermore, everyone in the Netherlands is called upon to work from home as much as possible.

    Given the measures announced by the Dutch government, employers should, as far as possible, give employees the opportunity to work from home. This is different where the employee performs an essential service (e.g., in the field of healthcare, public transport, food chain, emergency assistance).

    5. Can I direct an employee to see a doctor?

    If an employee displays coronavirus-like symptoms, the employer may send the employee to the company doctor to establish whether the employee is indeed sick. If the employee is indeed sick, the employer may, on the grounds of being a good employer, demand that the employee stays at home until the company doctor has confirmed that the employee has recovered. A legitimate consideration is that the employer is also responsible to protect the wellbeing of its entire staff.

    Please note that, in view of the current daily increase of the number of Corona patients in the Netherlands and the measures announced by the government, to call a doctor only if the symptoms worsen, the company doctor will not ask an employee to visit the surgery but will call the employee instead.

    Employees affected by the coronavirus outbreak will have the same protection as any sick worker. For Dutch employees this means that their salary must be continued for a maximum of 104 weeks. The salary due depends on what the parties have agreed upon but is at least 70% of the employee’s gross monthly wage, capped at the maximum daily wage.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Yes, the employee’s full salary (including other employment-related entitlements) should in principle be continued during a COVID-19 outbreak. An employee who has to work from home but cannot do so, either because the employer cannot provide the employee with the technology required, or because of the nature of work, will also in principle be entitled to his regular (full) salary and cannot be obliged/forced to take (unpaid) leave.

    Temporary Aid Scheme to Maintain Employment (NOW)

    On March 17, 2020, the Dutch government published several emergency measures to support Dutch business dealing with the coronavirus. One of these measures is the new regulation on compensation for wage costs, the Temporary Aid Scheme to Maintain Employment (in Dutch: “Tijdelijke noodmaatregel overbrugging voor behoud van werkgelegenheid” or the “NOW“). The NOW was published on March 31, 2020. On April 3, 2020, the Minister made a number of (small) changes to the NOW. Please find a non-exhaustive summary of the main details of the NOW below. For more information see https://www.loyensloeff.com/en/en/news/news-articles/qa-temporary-aid-scheme-to-maintain-employment-n18880/.

    What does the NOW entail?

    The NOW replaces the reduction of working hours scheme.[1] The purpose of the NOW is to prevent unemployment. Under the NOW, employers continue to pay the employees’ salary at 100%, while receiving a substantial compensation (“aid“) towards the wage costs of up to 90% of the wage bill (up to a certain maximum) from the UWV.

    In respect of which workers may aid be requested?

    Employers may request aid to compensate the wage costs for workers (i) that are employed by the employer and (ii) that are compulsorily insured under worker insurance policies (insured wages for national insurance contributions purposes or “SV wages“). Thus, aid may also be requested in respect of workers on flexible contracts, provided they continue to be employed by the employer during the period in which aid is granted and continue to receive wages from the employer. Temporary work agencies and payroll employers may also request aid.

    Amount of aid

    The aid is related to the percentage loss of turnover. The maximum entitlement to aid, paid in the event of a 100% loss of turnover, is capped at 90% of the overall wage bill. If the loss of turnover is less, the aid will also be proportionally less. For example, where there is 50% loss of turnover, the aid is equal to 45% of the overall wage bill. If the loss of turnover is less than 20%, no aid will be paid.

    Loss of turnover

    The term turnover has the meaning given in accounting law. The net turnover is taken as the basis, i.e., the income from the supply of goods and services by the relevant legal person’s business after deducting discounts and the like from the tax charged on the turnover. The loss of at least 20% of turnover must occur during a three-month consecutive period (the measurement period). Employers may calculate the loss of turnover at their own discretion over a reference period starting from March 1, April 1, or May 1, 2020. The effective date must be stated in the request for aid; it is not possible to alter the measurement period afterwards. The turnover earned in the measurement period will be compared to the turnover earned in the period January through December 2019, divided by four (the reference period). The outcome of this calculation is expressed in percentage points rounded upwards.

    If a legal entity or company forms part of a group, the loss of turnover of the entire group (as consisted on March 1, 2020) is taken as the basis. This means that if the entire group suffers less than 20% loss of turnover, none of the legal entities forming part of the group is eligible for aid.

    How is the aid determined?

    The maximum aid is equal to 90% of the wage bill during the three-month period of March to May 2020. The aid is calculated, in principle, on the basis of the SV wages paid to workers employed in the month of January 2020. The wage bill is the aggregated wages paid to all workers under the relevant employer’s withholding tax number (loonheffingennummer). The wage of each individual worker in respect of whom aid may be requested is capped at twice the maximum daily wage per month (recalculated for the three-month period). This means that no aid is given in respect of gross monthly wages in excess of €9,538.

    Additional charges and costs, such as employer’s and employee’s contributions to pension schemes and the accrual of holiday allowance, will also be compensated; it has been decided to set the employer’s charges at a fixed percentage of 30% for all instances.

    In other words, the overall wage bill on which the aid is calculated will be equal to 3 x (the SV wages in January 2020 + 30%). If the actual SV wages over the period March to May 2020, inclusive, are lower (e.g., as a result of not extending employment contracts for a definite period of time), the aid will be adjusted downwards. We note that this reduction does not take into account the degree of decline in turnover; the subsidy is reduced with 100% of the amount the wage bill has decreased. This means, among other things, that the impact is proportionally (much) higher in case of a lower turnover decrease compared to a larger turnover decrease.

    According to the NOW, it seems that if the actual SV wages over the period March to May 2020, inclusive, are higher, the aid will not be adjusted upwards.

    Obligations the employer must fulfill

    A number of obligations are imposed on the employer to whom the aid is granted. For example, the employer is expected to make every effort to keep the wage bill as equal as possible and the employer may not request permission from the UWV to give notice of termination of employment contracts due to business economic reasons in the period after March 17 and May 31, 2020.

    Payment in advance

    If the request is granted, the UWV will pay an advance of 80% (in three instalments) of the aid as calculated on the basis of the information supplied with the request regarding the anticipated loss of turnover. The UWV will decide on each request within 13 weeks of receipt.

    Application and duration of the NOW

    Requests for aid may be submitted as from April 6 until May 31, 2020, inclusive. Aid under the NOW will initially be granted in respect of the wage costs for a three-month period (from March through May 2020). The NOW may be extended for three months. However, additional conditions may apply when the NOW is extended.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    As discussed above, given the measures recently announced by the Dutch government employers should, as far as possible, give employees the opportunity to work from home. This could be different in situations where some employees have to continue their work from the office or where the employee provides an essential service (e.g., in the field of healthcare, public transport, food chain, emergency assistance). In the latter instance, it could indeed be advisable to quarantine certain staff to certain parts of an office or to send them to different offices (not only to avoid the spread of the virus but also in order to be able to continue the work as much as possible). Please note that employees working in the office must keep a distance of 1.5 meters from each other.

    Given the current pandemic, the employer may, by virtue of the right to issue instructions, temporarily assign the employee to another work location. Employees must of course be properly informed about this (employers should explain the reasons and emphasize that it is a temporary measure). In these unique times, more flexibility can be expected from the employee with regard to the work location.

    8. Can I direct my employees to report suspected cases of COVID-19?

    No, in the Netherlands employers cannot direct their employees to report suspected cases of illness due to privacy and data protection law related restrictions.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    Given the measures recently announced by the Dutch government, employers should, as far as possible, give employees the opportunity to work from home. As a result, an employer must have very good reasons to require an employee to come to the office and disciplinary measures will not be deemed appropriate. This could be different where the employee renders an essential service (e.g., in the field of healthcare, public transport, food chain, emergency assistance). Where an employer has taken all reasonable measures to provide for the health and safety of its employees, including the measures advised by RIVM and the Dutch government, and there is no opportunity to work from home (e.g., the employee renders an essential service), an employer can, in principle, legally require an employee to attend the workplace and, in such cases, non-attendance can, in principle, be sanctioned with appropriate disciplinary measures.

    It is advisable to discuss with the company doctor where vulnerable employees should perform their work.

    10. Can I screen employees and customers before allowing them to enter the workplace?

    This is, in principle, not allowed. The Dutch Data Protection Authority indicated on its website that employers may not screen their employees, as they should not take on the role of a (company) doctor by drawing conclusions on individual employees, for instance, based on their travel details or by asking their employees to take their temperature.

    However, given that the employer has an obligation to take reasonable measures to ensure the health and safety of its employees, and also taking into account good employment standards, we believe that it is a legitimate requirement to ask employees to visit the company doctor to have their temperature taken in case there is a direct threat of a coronavirus outbreak in the workplace. This will particularly be the case where an employer has compelling business reasons to be aware of any coronavirus infections in the workplace (e.g., to protect public health if an employee works in the healthcare sector).

    Given the current pandemic, the rapid spread of the virus, the more far-reaching measures from the government, the increasing pressure on the doctors and the employer’s obligation to take reasonable measures to ensure the health and safety of its employees, it could be argued that employees can be asked to measure their own temperature with an ear thermometer, and to prohibit employees with a (small) fever to enter the workplace in order to reduce the risk of other employees being exposed to the virus. The same applies to customers.

    An employee may however refuse to be examined if they are of the opinion that such a test is an invasion of privacy and the employer may not pressure the employee in this regard. The request not to enter the company premises can be considered a justified work instruction. To avoid the application of privacy requirements, the employer should refrain from documenting or otherwise processing the personal data of its employees in this context, including the results of the screening and information about doctors’ visits.

    [1] If a business has already applied for the reduction of working hours scheme, this application will automatically be regarded as an application for the NOW Subsidy. These businesses will be asked to provide additional information.

    CONTACT: Loyens & Loeff  |  Hermine Voûte  hermine.voute@loyensloeff.com  www.loyensloeff.com/en

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks[1], alcohol wipes, gloves, paper towels, ear thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from the company doctor, government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff[2] (e.g., pregnant, key employees and employees who travel).
    • Explore if any government support is available for employers when employees cannot continue their work and the conditions of eligibility for this support.
    • Check whether trade unions or other employee representative body must be involved.

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.[3]

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.[4] Please check leave arrangements, collective bargaining agreement (if any) and other agreements made in this regard.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down. Check whether trade unions and/or other employee representative bodies must be involved.
    • Where there is government support, check whether this support has been provided subject to certain conditions and/or whether there are obligations the employer must fulfill.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

    [1] In the Netherlands, the RIVM only recommends (face) masks for medical personnel and does not recommend (face) masks for others because according to the RIVM a (face) mask only helps if the person uses a special mask that closes well over the nose and mouth. The mask needs to be used very precisely and should be changed regularly. This is almost impossible in daily use according to the RIVM. It is also important to note that there is currently an acute shortage of face masks and other protective equipment.

    [2] In the Netherlands, it is advisable to discuss with the company doctor what to do with employees who are considered vulnerable.

    [3] In the Netherlands, the company doctor will decide when the employee is recovered and when the employee can resume work.

    [4] See question 5 for further information about pay for sick employees.

    This publication by Loyens & Loeff provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.