The government is instituting a curfew from 23 January 2021 with a ban on being outside between 9pm and 4.30am, except in exceptional cases. This measure will also entail the timely closure of shops (still open) in the food sector. Presumably, several other employers will also have to close their doors earlier.
The introduction of the curfew will raise the necessary labour law issues. Questions to which there are no immediate answers at the moment.
WHAT DOES THIS MEAN FOR ON-CALL WORKERS?
We now turn our attention in particular to the consequences for on-call workers. On 1 January 2020, the Labour Market in Balance Act (“WAB”) entered into force. It follows from the WAB that if the employer withdraws or modifies the call within four days prior to the call (or 24 hours if agreed in an applicable collective agreement), the employee will still be entitled to pay for the call.
There is a possibility that the introduction of the curfew will result in certain shifts not being able to be performed after the curfew takes effect. If these shifts are performed by on-call workers, who have already been called for these shifts, they may be entitled to wages over this call if the employer has not cancelled the on-call worker in time (i.e. four days in advance (or 24 hours if agreed in the applicable collective agreement)). Following the currently known labour case law in corona cases, this presumably means that possible wage claims following the introduction of the curfew are at the employer’s risk.
In other words, because the curfew will take effect on 23 January next, there is a possible wage continuation claim for all shifts that can no longer be performed by on-call workers as a result of the curfew and that are not cancelled in time by the employer. This means that employers who have not cancelled calls in writing/electronically by 22 January are in any case too late to timely cancel the shifts of 23, 24, 25 and 26 January 2021, which means that there may therefore be an obligation to continue to pay wages for these shifts after the curfew takes effect. If an employer as a whole fails to properly withdraw the calls, this could have major financial consequences.
We would also like to point out in this context that it is possible to exclude the continued payment of wages if this is included in the employment contract with the on-call worker. This is only possible for the first six months of the employment period.
We therefore advise to check as soon as possible whether calls already made to on-call workers, which cannot take place due to the introduction of the curfew, should be withdrawn in writing or electronically in order to at least limit these wage claims. In addition, we recommend checking the on-call workers’ employment contracts to see whether the obligation to continue paying wages is excluded for the first six months.
If you have specific questions about this, or any other employment law questions, you can of course contact us.