NOT ILL BUT ABSENT FROM WORK: TO WHAT EXTENT IS THERE AN OBLIGATION TO CONTINUE TO PAY WAGES IN THE EVENT OF ABSENCE IN CONNECTION WITH CORONA?

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If an employee is ill as a result of the corona virus, the rules are clear: the employee reports sick in the usual manner and adheres to the policy as applied by the employer. In return, the employer is obliged to continue to pay wages due to illness. This is no different if the employee stays at home on the advice of the National Institute for Public Health and the Environment ("RIVM") in case of colds or flu up to 38.0 degrees. Recent developments, however, raise the question of whether and to what extent there is an obligation to continue to pay wages if the employee is not ill but still does not want to or cannot appear at work. In the following, a number of situations will be discussed, together with the corresponding form of leave if applicable.

Necessary childcare: emergency leave, followed by another solution
As a result of the closure of schools and childcare centers, employees may be forced to care of their children. In this situation, a few days of emergency leave may be taken. During these days, the employer must continue to pay 100% of the salary. The law does not provide for emergency leave for the entire period during which schools and childcare centers are closed. Although employees are themselves responsible for the care of their children, employers should be understanding towards employees who fail to arrange full childcare for the hours they normally work. An obvious solution is working from home in combination with childcare. If this is not possible, a solution can be found in shifting working hours, taking overtime or holidays or taking unpaid leave.

Necessary care for a sick person: short-term care leave
If an employee has to take the necessary care due to the illness of a person as described in the Work and Care Act (“Wet arbeid en zorg”), the employee can take short-term care leave for this purpose. During this leave, the employee is entitled to 70% of the salary, but at least the statutory minimum wage. The condition for granting the leave is that the sick person needs care and that the employee in question is the only one who can provide this care. The leave amounts to twice the working hours per week per period of 12 months.

Stranded abroad: the employer's risk sphere
If an employee is stranded abroad and is unable to return to the Netherlands because a flight has been cancelled, this is considered a force majeure. Now that the failure to perform work does not lie within the employee's sphere of risk, the employer must in principle continue to pay 100% of the salary. However, in some cases it may be reasonable to insist on taking (extra) holidays. This depends inter alia on the circumstances under which the employee is abroad.

Fear of infection: refusal to perform work (“werkweigering”)
Finally, there are employees who do not want to appear at work because they are afraid of being infected by customers or colleagues. If the employer does not agree with the absence of the employee or the employee working from home, the absence is considered as a refusal to perform work. The employer is then entitled - after the employee has been warned of the consequences - to stop the payment of wages. It should be noted that the RIVM has not advised to close down departments, factories or organisations. Not even if more than 100 people work side by side.

The fact that employees may belong to a risk group does not change the above. Although the RIVM has advised to avoid contact with other people in that case, this does not mean that employees belonging to risk groups are relieved from the obligation to perform duties. Measures such as working from home and the introduction of spread working hours if this is not possible are in principle sufficient as to prevent a contamination.

If you would like more information or if you are unable to come to an agreement with your employee, please contact us.

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