We have now reached the questionable milestone that the coronavirus has been among us for 2 years. In this past year, we have faced many new measures and obligations. Such as the obligation to wear masks, introduced after a lot of hassle. This duty to wear masks also affects the workplace in shops, within education and in theatres and museums, among others. In addition, there will also be other employers who want to introduce compulsory mouth caps in workplaces where this has not yet been made compulsory by the government. The question that then arises is whether employers can proceed to do so and, if so, whether and how can action be taken against employees who subsequently refuse to wear a face mask? A subdistrict court judge has now given a clear answer to this question.
EMPLOYER’S RIGHT TO INSTRUCT
The case the subdistrict court had to deal with concerned a pastry shop, or shop where wearing a mouth mask has been made compulsory for everyone since 1 December. However, the employer in question had already introduced a duty to wear mouth caps in October. One of its employees, an order delivery driver, subsequently refused to wear the mouth mask on the occasions when he was briefly in the shop to collect his orders for the day.
What makes this ruling interesting for practitioners is that the subdistrict court ruled that making it compulsory to wear a mouth mask falls under the employer’s right of instruction and that employers have an interest in drawing a single line for all employees in this regard.
The employer’s right of instruction is laid down in Section 7:660 of the Civil Code. When applying this right to instruction, it is important that an instruction serves a legitimate purpose. The subdistrict court ruled that this was the case. After all, every employer must ensure a healthy and safe working environment under the Working Conditions Act and the Working Conditions Decree, which includes taking measures to prevent infection with the coronavirus in the workplace, under penalty of sanctions.
In addition, the subdistrict court considered that the employer had a second legitimate aim in introducing the obligation to wear mouth caps. After all, an employer also has the business interest to protect, because the employer has an obligation to continue paying wages in case of illness, which also applies when employees have to be quarantined and cannot work as a result of a possible corona infection.
The subdistrict court took into account that although the effectiveness of mouth caps is disputed, it is a socially accepted remedy. The subdistrict court therefore held that wearing a mouth mask during the coronagraph contributes to health and safety in the workplace and that an employer thus has a legitimate aim. This dismissed the employee’s appeal that the duty to wear mouthguards infringed his privacy.
In short, we can conclude from this ruling that even employers within sectors not yet designated by the government can unilaterally introduce a duty to wear mouth caps in the workplace on the basis of the employer’s right of instruction. After all, the legitimate purpose that was decisive for the instruction in this ruling will also apply to most other employers. If employees subsequently refuse to follow the instruction, a suspension and – after warning – a wage sanction may be imposed.
POINTS OF ATTENTION
Employers should bear in mind that if a works council has been set up within the company, or if a staff representative body is active, such a decision must be submitted there.
In addition, there may of course be cases where, for medical or psychological reasons, employees cannot be expected to wear a face mask while working. When such a situation arises, we recommend trying to find a suitable solution in consultation with the employee, and possibly also the company doctor.
Any questions? Feel free to contact us.