On 1 April 2016, it appeared that the new rules on unworkable weather were finally to be introduced. The new scheme forms part of the bill that was passed at the end of 2012 Act on the Simplification of UWV Regulations, which only on 1 April 2016 would go into.
The 2015/2016 winter is now more or less over, which means there is a risk that employers will have already lost sight of the new rules by the time the first spell of inclement weather strikes (at the end of 2016?).
Launch postponed after all
Minister Asscher has now realised this too. At the very last minute, he announced that the introduction of the scheme is, after all, being postponed once again until 1 October 2016. He also states that he will be consulting with the social partners on the content of the scheme before 15 June. It therefore cannot be ruled out that the new scheme may ultimately not be introduced at all. The saying “third time lucky” would then apply, as this is the third time the introduction of the new scheme has been postponed. Below, for those interested, we describe the scheme, the implementation of which has, for the time being, been postponed once again.
Unworkable weather
It is up to the employer to determine what constitutes unworkable weather. This depends on the sector in which the work is carried out. As soon as employees are unable to utilise 20% or more of their working capacity due to unworkable weather, the employer must report this to the UWV. Naturally, the employer must, as far as possible, assign employees to tasks that can still be carried out during periods of unworkable weather.
The UWV then assesses whether it is indeed impossible (or difficult enough) to work due to weather conditions that make working impossible. The outcome of this assessment may vary by sector. In the construction sector, for example, the wind chill is taken into account, whilst in the agricultural sector, soil temperature is the key factor. Sectors can obtain clarity in advance by agreeing standards with the UWV.
In addition to winter conditions, other non-economic circumstances may prevent employees from working. These must be emergencies affecting multiple businesses and designated as exceptional by the Minister. Past examples include the fireworks disaster in Enschede and the evacuation of the Betuwe region due to flooding. The new scheme is therefore not referred to as the “unworkable weather’ scheme, but is named “emergency plan“.
Waiting time
Under the new scheme, there is a waiting period of 3 weeks. During this period, the employer must continue to pay the wages of employees who are unable to work, or unable to work sufficiently, due to inclement weather. Only after this period does the employer cease to be obliged to continue paying wages, and the employee becomes entitled to unemployment benefit. This waiting period does not have to be a continuous period of 3 weeks.
In the event of emergencies other than winter conditions (see above), a shorter waiting period applies of 2 weeks, but that period must be continuous.
Employer’s duty to report
In all cases where an employer wishes to invoke the emergency scheme, they must notify the UWV on every day on which an employee is unable to work for 20% or more of their working capacity due to an emergency (e.g. inclement weather). Days that have not been reported do not, of course, count towards the waiting period.
Naturally, the employer remains responsible at all times for ensuring that the workplace is safe, even in wintry conditions.