We can and are allowed to go on holiday again. However, this does present risks and raises questions for employers. What if an employee gets stranded in their holiday destination due to a sudden lockdown? What should be done if an employee becomes infected? Does the employee have to self-isolate for 14 days after their holiday? And must their wages continue to be paid in the situations mentioned above?
Employee risk
The law states “no work, but pay” (Article 7:628 of the Civil Code). In other words, as a general rule, employers are required to continue paying wages regardless of the reason why work cannot be carried out. Furthermore, if an employee falls ill whilst on holiday, they are still entitled to continued payment of wages in the event of illness, provided they report their illness in good time.
However, the above may not apply if, as an employer, you can demonstrate that the employee knowingly took the risk that they would be unable to come to work after their holiday (the burden of proof lies with the employer). In that case, you may, in principle, stop paying their wages.
Inform employees about the risk of a pay freeze
In order for an employer to be able to argue that the risk of being unable to come to work is borne by the employee, it is advisable to set out in writing, prior to the holiday period, the situations in which this will apply. This ensures that the consequences for the employee going on holiday are clearly set out in advance. As an employer, this strengthens your position that the employee took the risk despite having been warned.
When informing employees, reference should preferably be made to the government website regarding the status of all travel advice: https://www.nederlandwereldwijd.nl/reizen/reisadviezen
Colour codes
There are four colour codes.
- Green = travel to the area is permitted.
- Yellow = travel to the area is permitted, including for holidays, but please be aware of any restrictions in place.
- Orange = travel only if necessary. Holiday travel and other non-essential travel are not recommended.
- Red = it is advised not to travel to the area.
Holiday policy
With regard to holiday policy during the coronavirus pandemic and whether or not to suspend payment of wages, the following guidelines may be applied. The employee is travelling to a country with the following code:
- green: continue to pay wages as normal;
- yellow (more or less the same infection risks as in the Netherlands): continue to pay wages as normal, even in the event of illness;
- yellow, but during the holiday the alert level changed to orange, and there had already been signs of this change beforehand: the requirement to self-isolate for 14 days upon return, no pay during the period of absence following the holiday – even in the event of illness due to COVID-19 – and no pay during the 14-day self-isolation period;
- orange: the requirement to self-isolate for 14 days after returning from holiday; no pay during the period of absence following the holiday, even in the event of COVID-19;
- red: no pay during any absence following the holiday, including in the event of COVID-19-related illness, and no pay during the mandatory 14-day quarantine period.
If an employee travels to a country with an orange or red travel advisory and becomes infected with COVID-19 whilst there, it could be argued that the employee knowingly took a greater risk of infection. Consequently, you could take the view that they are not entitled to pay during the period of illness. However, you must be able to prove that the employee contracted the virus in the holiday destination.
Working from home
It should be noted that if the employee is able to work from home or from their holiday destination after their holiday – for example, during a lockdown or whilst in a 14-day quarantine – the above does not apply. In principle, the above also does not apply if the employee falls ill whilst on holiday; in such cases, as an employer, you must continue to pay their sick pay. This is different if the employee has travelled to a country with an orange or red travel advisory and has contracted the coronavirus there.
If an employee falls ill, but the illness is not related to COVID-19, you must continue to pay their sick pay as normal.
Recording leave hours
Instead of withholding pay, it is also possible, in consultation with the employee, to opt, for example, to take leave hours. However, it is questionable whether the employee still has any leave hours left, given that they have only just returned from holiday. Their leave balance is therefore likely to be minimal.
Report holiday destination
By law, it is not permitted to ask about certain private matters concerning an employee. In this case, however, there are grounds for asking your employees to state which country they are going to on holiday. As an employer, you have a statutory duty of care towards your employees and also towards your clients. You must prevent the risk of infection. Furthermore, you may also ask your employee when they will return from holiday, in connection with a possible 14-day quarantine period.
Quarantine is compulsory
For countries classified as orange or red, the government strongly advises that you self-isolate for 14 days upon your return. Although this is only a recommendation, as an employer you should follow this guidance, not least in view of your duty of care.
This means that you are requiring your employees to self-isolate for 14 days. You must inform your employees of this in advance. The same applies to the implications regarding pay.
No repatriation
It is now common knowledge that the government will no longer be repatriating people due to the coronavirus. Only if a package holiday has been booked will a tour operator be obliged to bring its travellers home. Employees must also bear this in mind.
Sample letter
Suspending the payment of wages is a drastic measure. It may therefore lead to a dispute and/or legal proceedings with the employee. Naturally, there is as yet no case law on this matter. It is therefore not possible to state with certainty that the above-mentioned holiday policy would be approved by a court. By clearly informing employees in advance, you, as an employer, will in any case have fulfilled your duty to provide information and your duty of care.
VWG has a sample letter available which you could use to communicate the holiday policy relating to COVID-19 internally. To obtain a copy, please contact our employment lawyer, Mr G.A.J. (Gert-Jan) Brinkman, via gbrinkman@vwg.nl