During the most recent press conference held on 14 September last, Dutch Prime Minister Mark Rutte announced that the Netherlands is not yet ready to abolish all the COVID-19 precautionary measures, and that the country must learn to live with the coronavirus. The House of Representatives has also debated the matter.
Although it is clear that we will need to deal with the coronavirus for some time to come, several of the rules will be eased effective 25 September 2021. For the Dutch working population, the following eased rules in particular are important:
- the basic premise of ‘work from home, unless there is really no other option’ will be replaced by ‘work from home where possible, and at your place of work where necessary’;
- the mandatory social distancing rule (1.5 metres) will be abolished;
- having a COVID certificate will be mandatory in certain specific situations;
- it will no longer be mandatory to wear face masks at, among others, railway stations and on platforms.
So what exactly does the easing of the ‘COVID-19 precautionary measures’ entail? And, from a more practical perspective, what does it mean for the workplace? Read on to find out more.
New recommendation for working from home
Although working from home is still encouraged, the new recommendation for working from home is less strict than it was before: whereas employees were previously only permitted to go to their places of work if there were no other options, they are now permitted to go to work if that is necessary. The Prime Minister explained that it is the responsibility of employers and employees together to make appropriate arrangements.
While at a glance the new recommendation for working from home does not seem to imply a major change, the adage, which will apply as from 25 September 2021, gives employers more options for having their employees be physically present at work for a few days a week at least. Employers will, however, need to be able to substantiate that it is ‘necessary’ for employees to come into work. For example, under certain circumstances attending meetings to strengthen teamwork could be classified as ‘necessary’.
Social distancing rule to be abolished
Effective 25 September 2021, the social distancing rule (1.5 metres) will be abolished completely. At present, it is unclear what exactly this means for the workplace. Even though this social distancing rule may in principle also be abolished in the workplace, employers still have a duty of care to create a safe working environment for their employees. According to the Prime Minister, 1.5 metres is still considered to be a safe distance. The question is then whether employers given their duty of care to create a safe working environment for their employees will still need to enforce the social distancing rule.
A COVID certificate will become mandatory for all visits to hotels, restaurants, bars, theatres, cinemas, festivals, professional sports matches and other events. Following the debate in the House of Representatives, specific exceptions will apply, for example for outdoor seating areas of hotels, restaurants and bars.
Based on Dutch law, at the moment it cannot be made mandatory for employees who work in these sectors/industries to show a COVID certificate. The reasoning was that, given the nature of the legal relationship and the relationship of dependence of employees, this measure was too drastic and that other measures (such as social distancing) in the workplace were available to protect employees. In this context, it is by no means certain whether it would be wise for employers to stop enforcing the social distancing rule in the workplace.
Vaccination in the workplace
In our Q&A, we addressed the issue that at present it is not easy for employers to justify enquiring about their employees’ vaccination status. In addition, under the General Data Protection Regulation employers are not permitted to register the vaccination status of their employees.
During the press conference, Dutch Public Health Minister Hugo de Jonge emphasised once again that vaccination is not mandatory, and will not be made mandatory in the workplace. However, the Minister has also announced that employers may ask their employees whether they are vaccinated, although employees are not obliged to answer. The Minister went on to add that employers must then take whatever measures are necessary to create a safe working environment. Under privacy laws, employers are still not permitted to record whether employees are vaccinated or not. It would appear that the government is contemplating the idea of making it possible for the health sector to record the vaccination status of employees as, health professionals work with vulnerable people,. The government also wants to explore possibilities for whether COVID certificates can be used in work situations in other sectors and industries, and if so how.
In public transport, the obligation to wear a face mask will continue to apply exclusively in vehicles; face masks will no longer be mandatory at railway stations and on platforms. Face masks also remain mandatory at airports beyond the security gates. Face masks will be abolished in higher education, senior secondary vocational education and secondary education. The question whether face masks can be made mandatory in the workplace was addressed in our previous Q&A.