Travelling to countries with a low infection rate (the countries with the yellow or green colour code) is possible again. This raises employment law questions. What about the statutory holiday entitlements? And who bears the wage risk in the case of colour code orange?

Holidays and expired holiday entitlements

Employment law distinguishes between statutory and non-statutory holidays. Every year, an employee is legally entitled to days off equal to four times the agreed number of weekly working hours. If an employee works 40 hours per week, he or she is therefore entitled to 20 days’ holiday. Employers and employees often agree on additional days’ holiday (known as non-statutory days). If an employee has actually been given the opportunity to take his or her days off and the employer has drawn the employee’s attention to the consequences of failing to do so, the statutory days’ holiday expire six months after the year in which they were accrued. The non-statutory days’ holiday expire five years after the year in which they were accrued.

No corona influence

In principle, the corona pandemic does not alter the expiry period of the statutory and non-statutory days’ holiday. If an employee still had statutory days’ holiday that were accrued in 2020, they expired on 1 July 2021. The fact that the employee was unable to go on holiday abroad does not alter this. If, as stated above, the employee was given the opportunity to take his or her days’ holiday and was notified of the consequences of failing to do so, the remaining statutory holidays expired on 1 July 2021. The non-statutory holidays accrued in 2020 do not expire until 1 January 2026. It is possible to make alternative arrangements regarding the expiry of statutory holidays, but employers are not obligated to do so.

Wage risk in the case of home quarantine

Since 1 January 2020, an employee who is unable to perform the agreed work has been entitled to his or her salary unless the non-performance of the work is for the employee’s account. If an employee goes on holiday to a country with an orange colour code, or if an employee is on holiday and the colour code changes to orange during the holiday, the employee must go into quarantine for ten days on his or her return, even if the employee has already been vaccinated. If an employee can work from home during the home quarantine, no problem arises, since the employee can then continue to perform the agreed work. This is otherwise if an employee cannot work from home and is therefore unable to perform the agreed work during the home quarantine. The question is then whether that non-performance of work is at the employee’s risk and he or she is therefore not entitled to salary, or whether it is at the employer’s risk, in which case the employer must continue to pay the salary.

Summary dismissal

Legal literature is divided on this point, and case law has also not yet provided an unambiguous answer. On 1 April 2021, however, the Limburg Court issued a ruling that provides some clarity. In the case in question, a summary dismissal was upheld after an employee who had been given several official warnings that he could no longer afford any further slip-ups nevertheless travelled to Poland, where code orange was in force at the time, even though the employer had prohibited the trip. The court’s judgment was based in particular on the fact that the employer had clearly informed the employee beforehand in writing of the consequences of travelling to Poland, and the employer had a compelling business interest in not allowing the employee to travel to Poland, because the employee could not perform his duties by working from home.

Knowingly agreed

Partly in light of this ruling, it is defensible that the salary risk in the aforesaid case should be borne by the employee, provided that the employer gave the employee clear written instructions beforehand. In that case the employee has been notified of the consequences and knowingly accepts the wage risk in the case of colour code orange. At the time of publication of this newsletter, however, the colour codes in many countries have been changed to yellow or even green. In principle, the employee may therefore go on holiday to those countries in good faith. If the colour code is changed to orange or even red during the holiday, quarantine is mandatory when the employee returns home.

Conclusion

Now that 1 July has passed, employers and employees should be aware of the possible expiry of accrued statutory holidays. Employees who are unable to perform the agreed work after taking a holiday in a country where colour code orange applied may lose their wage entitlement. This applies only if the employee was clearly informed beforehand and in writing of the possible consequences.

Our advice is not to let it come to discussions, but rather to properly record the consequences of travelling abroad (especially to high-risk areas) for employees in a holiday policy and to clearly communicate the rules. We will be happy to help you draw up a holiday policy and to answer any questions you may have. Please contact Bart de Vroe (+31-6-20366243) or Puck Keurentjes (+31-6-12860380).

This article was published in the Newsletter Vestius of July 2021

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