There has been an increase in the number of reported Covid-19 infections in the Netherlands. The pandemic is seeing a resurgence not just in the Netherlands, but also in many European countries. Many of these countries, such as Spain, France and Italy, are popular holiday destinations for the Dutch. The resurgence in Covid-19 cases has forced the Ministry of Foreign Affairs to declare many countries, or specific regions, to be orange zones. Code orange signifies a country that an area is classified as a no-go zone for holiday travel; only essential travel is allowed. Travellers returning to the Netherlands from these areas are required to quarantine at home for ten days. The quarantine is mandatory even for those who test negative for corona virus.
The question now is who will be responsible for paying the costs of mandatory home quarantine. It is clear that if employees can work from home during the quarantine, this will not pose problems to employers. But for those who cannot perform their duties from home, this problem will become relevant.
The law can be consulted for initial guidance. According to article 7:628 of the Dutch civil code, the employer is expected to pay wages even if the employee has not worked, unless the non-performance of duties was caused by the employee in question. Jurisprudence has shown which party should bear the responsibility of non-performance of duties. Non-performance because of bad weather conditions is borne by the employer, as are poor sales performance and business disruptions caused by flooding and even wars. However, the 2007-2008 economic crisis was mostly borne by employees.
So who will be responsible for paying the mandatory home quarantine? Viewpoints from two Dutch lawyers, as discussed in De Volkskrant newspaper, may shed light on this question. Pieter de Ruiter, an employment lawyer, says that it is not yet clear how this situation would be dealt with, simply because there is no precedence and no pre-existing court rulings about mandatory quarantine. He speculates that judges will approach such cases based on several issues. Basically, there are two scenarios when it comes to home quarantine.
Orange on departure and return
The first situation is when the employee decides to travel to a country that has already been classified as orange before their departure. They know that they are going to a no-go country for non-essential travel. De Ruiter speculates that in this case, the judge could place the cost of home quarantine on the employee. This assumption was shared by Evert Verhulp, professor of employment law at the University of Amsterdam: “If they take the risk, they will also have to take the responsibility.”
If such a situation would happen, there are several ways to place the cost upon the employee. One option could be for both parties to agree that the employee should take extra vacation days for the period of the quarantine. However, for this to be successful, the employer should adopt a more flexible attitude, of course within the framework of good employment practices.
Yellow on departure and orange on return
The second scenario is more complicated. This involves an employee coming back from vacation from a country that was marked yellow, i.e. safe, before the departure, but was declared orange during their stay. In recent weeks, many tourists were shocked by a sudden change in government travel advice, leaving them scrambling to return home as soon as possible. Unlike the previous case, this scenario seems to place the employee on the innocent side.
“As mentioned before, this will remain guesswork for the time being, but I believe that in such a situation, a judge will not readily rule that the discontinued payment of wages should be fully at the expense of the employee,” says De Ruiter. This view is also supported by professor Verhulp, who agrees that in a case like that the employer should continue to pay wages. He also adds that the employer should not force the employee to give up their remaining vacation days or even to show up at the office.
What if the problem persists?
If the pandemic continues, and the travel advice for many countries remains or becomes orange, in the long run this will be in favour of the employee. Such a “new normal” would make the employer lose grounds for reasoning that the cost should be borne by the employee. In fact, if the pandemic continues, standard measures for compulsory quarantine and its costs will be required to be instituted by employers.
Jacco Vonhof, of SME organization MKB Nederland, defends the employers and SMEs. He argues that placing of the cost of the quarantine on employers would disproportionately affect businesses, especially at this time, when most businesses are already struggling due to the pandemic. He hopes the government will come up with an “emergency arrangement” to help employers and entrepreneurs.
Written by Stephen Swai