With effect from 26 June last, many relaxations took effect again. One of these relaxations concerns the cancellation of the urgent advice to work from home unless there is no other option. However, the government does advise to only come to the office for a maximum of half of the working hours and only when a distance of 1.5 metres can be kept on the work floor. Of course, the other basic rules (washing hands, not shaking hands and staying home in case of complaints) will still apply. But we can go back to the office in large(er) numbers.
After sixteen months of working from home, this relaxation comes as welcome news to many employers and employees, but at the same time raises many questions. For what is meant by half the working time? And how to deal with employees who still prefer not to come to the office? And finally, given the obligation to ensure a safe workplace, are employers allowed to ask employees returning to the office whether they have already had corona or have been vaccinated? We will address these questions in this article.
CABINET OPINION
The government allows working in the office again, albeit with some additional advice in addition to the usual basic rules. The first piece of advice is to come to the office for a maximum of half the agreed working time. By this is meant half of the agreed working hours. Or in other words, in the case of a 40-hour working week, the advice is to work a maximum of 20 hours of that at the office. So the remaining time the employee preferably still works from home.
In addition, the advice – when employees return to the office – is to travel as little as possible by public transport during rush hours (between 07.00 – 09.00 and 16.00 – 19.00) and continue to avoid busy places. This is in order to be able to keep as much as 1.5 metres distance as possible during commuter travel as well and avoid danger of contamination. The government has also pointed out that in addition to 1.5 metres distance, proper attention should be paid to ventilation in the buildings where work is done.
THE WORKER WHO REFUSES
While a number of workers will undoubtedly be eager to come back to the office, there will also be a group that is actually reluctant to do so. The advice is to talk to each other and try to reach tailor-made agreements. For instance, an employee who fears contamination at work because of poor health – a fear that is not totally unfounded because the pandemic is not over yet – might agree, for the time being, to come to the office only on days with minimal office occupancy.
If it really fails to come closer together, an employer can, provided of course there is a safe workplace (with sufficient distance and observance of basic rules), force the person to come to the office. After all, there is no legal right to work from home (yet). And if there are no identifiable obstacles to coming to the office, an employer can forcefully designate the work location.
SAFE WORKPLACE AND ASKING ABOUT CORONAVACCINATION
Employers have an obligation to provide a healthy and safe workplace for employees. This might lead employers to want to actively ask their employees whether they have already had corona or have been vaccinated against it in the meantime. However, this is not allowed. The question whether someone has had a corona infection or a vaccination is health data and therefore special personal data. Even if employees communicate this information to their employer unsolicited, the employer is not allowed to store (process) this information. This is only reserved for an occupational physician in exceptional cases.
SO WHAT SHOULD AN EMPLOYER DO?
Given the upcoming summer holidays, offices will not immediately fill up again. Employers would nevertheless do well to start anticipating the return of employees to the office. This can be done by thinking about a ‘return plan’ or ‘reboarding programme’, so they know what to expect as soon as the office occupancy starts to increase again. Do not only pay attention to the applicable rules (the basic rules, keeping your distance, walking routes or rules regarding the use of canteens and lifts), but also start thinking about a system that allows employees to sign up for an office space and maintain contact with the group of employees who still work from home. Indeed, the ‘old normal’ of working five days at the office is not expected to return much, if at all, after the summer. Many employees will opt for a form of ‘hybrid’ working in which work is done partly from home and partly in the office.
Finally, to the extent that a homeworking policy had not yet been drawn up during the past 16 months, employers would do well to still draw up a homeworking policy. Do not forget to involve the works council as well, as certain components of a homeworking policy may require consent. If we can be of assistance, do not hesitate to contact one of us.
In addition to a beautiful summer, we wish everyone a great time at the office!
