16 Jun Corona special | Holidays 2020 and salary entitlement
Far-reaching restrictive measures have been taken worldwide due to the corona pandemic. Travelling to other countries is an example of this. The travel restrictions are now gradually being lifted.
As from 15 June 2020 it is possible again to go on a holiday to several countries within the EU. The travel advice for those countries has turned yellow from the earlier given orange status (holiday trips are possible, but beware of risks). The travel advice for all countries outside the EU remains orange (holiday trips are not recommended).
If a country is coded orange, the advice is to travel to that specific area only if it is necessary. Holiday trips are not considered “necessary”. Visiting an immediate family member due to special circumstances, such as illness, can generally be considered necessary.
Can the employer forbid the employee to go on holiday to an orange coded country?
The answer is “no”. The employer may not forbid the employee to travel to an orange coded area.
However, the employer can inform the staff about the consequences in advance, in case of travelling to an orange coded country against the advice of the employer.
Based on the principle of being a good employee (“goed werknemerschap”), the employee can be expected to take into account his immediate colleagues when planning his holiday to an area to which code orange applies and therefore not travel to an orange coded country. However, the employee is free not to take this into consideration.
Salary without performing work; burden of proof employer
What about the employee’s salary claims?
The legal principle is that the employer is obligated to continue to pay the salary, even if the employee has not performed all or part of the agreed work. This obligation lapses, however, if the employee has not performed the agreed work due to a cause that should reasonably be borne by the employee. Whether this applies, shall depend on the facts and circumstances of the case.
If the employee travels to an orange coded area and gets stuck there, for example, or has to remain isolated for two weeks after returning due to government measures, as a result of which the employee is (possibly) unable to work, this may be considered to be the employee’s risk. The employee may then lose his or her entitlement to salary.
Salary during illness
What if the employee falls ill?
The employee is legally entitled to 70% of the last earned salary, if he has not performed the stipulated work due to disability for work (read: illness). There are a few exceptions to this, for example if the sickness is caused by intent on the part of the employee. The intention must be aimed at becoming ill. In line with existing case law, deliberate cause of illness is not quickly assumed. There is, for example, no question of intent if the employee exhibits risky behavior. Taking an overdose of medication and cosmetic surgery (without medical necessity) are some examples where intent was not assumed.
However, risky behavior can lead to illness by fault or actions of the employee. Collective agreements (cao’s) or employment agreements often stipulate that salaries are supplemented up to 100% during illness. In such cases, it is possible to agree in writing that if the illness is caused by fault or actions of the employee, the employee is not entitled to the supplement (above the legal 70% of the last salary earned).
Assuming the scenario that the employee has been on holiday to an orange coded country and has to go into home isolation after returning to the Netherlands due to government measures, the following consequences are conceivable.
- The employee can and will work from home. The employee is entitled to salary.
- The employee cannot work from home. It is then justified that the employee is not entitled to salary because the employee has ignored the travel advice. The risk is then borne by the employee.
- The employee reports sick after returning home. To the extent that the employee’s sickness notice is corona related, the employer may take the position that the employee caused the illness intentionally (by ignoring the advice). In case of intent, this can lead to loss of the employee’s salary entitlement. However, as noted before, it is not easy to prove intent on the part of the employee (to become ill/disable for work). In theory, the law thus offers the possibility to stop salary payments during illness due to intent on the part of the employee, but in practice this turns out to be difficult. At most, the loss of the supplement above the statutory 70% is a possibility, provided that this is laid down contractually (in the collective agreement (cao) or in the employment contract). Another complication is the question how the employer can find out whether the sickness notice is corona related. The employer is not at liberty to ask the employee for medical information after a sickness notice. However, the employee must share this information with the company doctor. The company doctor will suffice with an assessment of the employee’s (un)suitability for work. The company doctor may not provide the employer with any further information.
- The employee reports sick with non-corona related symptoms. The employer then has an obligation to continue to pay salary during illness, assuming that the company doctor is of the opinion that the employee is incapacitated for work.
Employee is stuck abroad
If the employee gets stuck in an orange coded country, ignoring the negative travel advice can also have consequences for the right to salary. The risk is then borne by the employee. If the employee is able to work from its holiday address, the employee is entitled to salary for the hours worked.
If the employee is on holiday in a yellow coded country that turns orange during the holiday, the employee retains his entitlement to salary, provided the employee returns as soon as possible. If the employee fails to do so, this may also result in the loss of salary entitlement.
Travelling for work
Is the employee allowed to refuse to travel abroad for work? In principle, no. The employee is obliged by law to comply with the employer’s instructions regarding the performance of the work. However, in the case of travelling to an area that is coded orange, the employee may refuse to travel to that area if the trip is not necessary. The trip will sooner be regarded as not necessary if, for example, the trip abroad is for a meeting that can also take place as a video conference. The employee may refuse to travel and is then entitled to salary.
The employee is allowed to go on vacation to high-risk countries, which, however, may result in the loss of salary entitlement. Ignoring the negative travel advice issued by the government in connection with the corona pandemic can have consequences for the employee’s salary entitlement. If, as a result, the employee is unable to perform his stipulated work, this will be at the expense of the employee and he will lose his right to salary. This is different if travelling to a high-risk country is necessary. Travelling to a high-risk country for the purpose of a holiday cannot be considered necessary.
In the event of disability for work due to illness, there is a considerable chance that the employee will retain his entitlement to salary up to at least 70% if he falls ill after travelling to a high-risk country and the company doctor is of the opinion that the employee is disable for work.
If you have questions regarding this topic, please contact Eliza Akopova (+31 6 12860380).