The coronavirus continues to have a major impact on business. Rules and advice are constantly changing. What rules are currently in place around working from home? When can you require an employee to come to the office anyway?
THE HOMEWORKING ADVICE
Currently, the advice is still: ‘Work at home unless there is no other way’. So this is also still the starting point. In some cases, working from home is also possible and well organised by the employer. However, there are also situations where it is important for employees to be present in the office. When can an employer require an employee to come to the office despite government advice? In this context, the government has prepared a guide with general criteria for working from home.
STILL COME TO THE OFFICE
Working from home is not an employee’s right. There are therefore certainly conceivable circumstances that justify an employee having to come to the office despite homeworking advice. Moreover, not everyone can work from home, for instance due to the nature of the work or because of the home situation.
For these employees, however, the employer’s workplace must be safe. Together with any employee participation body, such as the works council, the employer must draw up a policy on working from home. Besides the regular obligations regarding working conditions, the RIVM guidelines and measures drawn up since the arrival of the coronavirus apply.
According to the criteria established by the government for working from home, an employee may work partly or entirely on location in the following cases:
– The work requires physical presence of the employee and it is strictly necessary for the progress of a necessary business process or for urgent social reasons. Think of workers in assembly, construction, assembly line or industry. But also employees working in distribution and care, or as receptionists, bank employees, security guards, cleaners or social workers. Nevertheless, the advice is to consider whether, by mutual agreement, certain work within these professions can be done from home.
– The work requires location-based software or hardware. For example: air traffic controllers, work using planning systems of large logistics centres and transport companies.
– The work requires the use of company confidential information that can only be viewed on location.
– The employee experiences such mental complaints that performing the work on location is necessary for the employee’s mental health. In this case, the advice is to make customised arrangements with the employee so that they can work coronaproof in the office. In addition, contacting the company doctor can be considered.
– The employee’s physical home work situation is not and cannot be made adequate. Presence in the office may then be necessary for the employee’s health and well-being. If it is really not possible to provide the employee with the necessary resources and information to carry out the work from home according to ergonomic principles (think: laptop or computer, detached keyboard, good office chair, access to software), the employee can work coronaproof in the office.
According to the government, the following reasons do not constitute a direct reason for working in the office:
– I would like to have visibility of my employee and whether he/she is performing the work properly.
– I would like to induct a new employee.
– My employee misses the social aspects of work.
– My employee is more productive in the office.
– My employee does not see the importance of working from home.
– My employee is unable to create a suitable workplace at home.
The government suggests solutions to these problems in the general criteria for working from home. Only if this fails can this be a good reason to work (partly) in a coronaproof equipped office or on site. Always in line with RIVM guidelines, though.
In practice, many situations arise that do not fit exactly into the aforementioned examples. What is leading in those cases varies from case to case and sometimes an unequivocal answer cannot be given.
DUTY OF CARE: SAFE WORKPLACE
When is the workplace sufficiently safe and has the employer fulfilled its duty of care in that context? When is it strictly necessary for an employee to go to the office? And what happens if you ask employees to come to the office and corona breaks out in the workplace (despite various measures)? Can the employee hold the employer liable for a corona contamination? These are some of the questions we have seen a lot of recently.
In order to give employers more concrete tools to determine whether an employee should come to the office and what measures should then be taken in the workplace, several elaborations and guides have now been drawn up.
The Social and Economic Council has incorporated the Dutch government measures based on the RIVM recommendations and measures to prevent the infection and spread of the coronavirus in a handbook. Click here for the Social Economic Council’s (SER) general handbook COVID-19. Among other things, it draws attention to adapting the RI&E and associated action plan. These should include measures to prevent the spread of the coronavirus. Incidentally, this also applies to measures regarding working from home.
If a workplace is not safe and not in line with the corona guidelines, it can be reported to the Inspectorate SZW. Not working from home is not in itself an offence. The Inspectorate SZW will enforce if the workplace does not comply with the current corona guidelines. And of course, the general rules on working conditions continue to apply.
GREY AREA
We prefer to give practical and quick unambiguous answers to questions as formulated above. In some cases, this is not possible. This is because we too are still in a ‘grey’ area in this context. To some extent, there are guidelines to assess when the employer has fulfilled its duty of care in the workplace to prevent coronavirus. But every workplace and employer is different.
Exactly how far does the employer’s duty of care extend in a concrete case? Have you done enough if you apply the RIVM guidelines? How do you deal with vaccinated and unvaccinated employees and whether they can come to the office? Should mouth caps be worn in the workplace?
We are happy to think along with you. Feel free to contact us with any questions on this topic.
