Within labor law, questions arise in corona time that have never been explicitly asked before. These are questions and answers to them that were not important before, but are now, such as: as an employee, do you have to disclose to the employer which vacation destination you want to go to? In this blog, a consideration.
The State Department has divided vacation destinations into different colors on the government website in connection with the corona pandemic. The color or code red means that the respective vacation destination has a negative travel advisory. Many well-known vacation destinations have code orange. It is strongly advised by the ministry not to travel to those destinations if not necessary. A vacation trip is not part of a necessary trip. If you come back from a vacation destination that has code orange or red or gets code red in the interim, you are strongly advised to go into quarantine for fourteen days.
An employer has the obligation under Article 7:658 of the Civil Code to ensure a healthy and safe workplace. In corona time, this means that the employer must ensure that employees are not infected with the corona virus. We know the examples from the meat processing industry, such as at the Vion company in Groenlo and Scherpenzeel and the Van Rooi Meat company in Helmond. An employer naturally wants to know from the employee returning from vacation, who starts working again on the shop floor, whether he or she is infected with corona and thus poses a risk to the other employees. Therefore, that employer naturally wants to know if that employee has been to a code orange or code red vacation destination. But is that employee required to report it for privacy reasons? And what are the consequences if he does not?
A person's vacation destination can say something about a person's personality, about their image, about who they are. It can also be stigmatizing. For example, those who book a hiking vacation in the Austrian mountains are likely to have a different personality than those who vacation in Ibiza. Maybe you also go on vacation to engage in dangerous or exciting activities. Perhaps you don't want your employer or your colleagues to know about it. Your vacation destination is therefore part of your privacy. Requiring you to disclose that destination to your employer is therefore an invasion of that privacy. Is this invasion justified?
There is no case law on this yet, but based on Article 8(2) ECHR, I estimate that there is no justification for making it mandatory to report the vacation destination. There is no legal obligation to do so in Section 3, Title 10, of Book 7 of the Civil Code, the part of labor law that deals with vacation arrangements. Nor is there any established case law within labor law that says anything about this. This while those are requirements for being allowed to infringe on privacy. Now that there are none, the employer may not require the employee to disclose his vacation destination.
Does the employee then not have a duty under Article 7:611 of the Civil Code, good employer and, in this case, good employee conduct, to communicate his vacation destination? Indeed, this article offers judges opportunities to "read in" norms and values into employment law. Certainly recently, the Supreme Court has resolved some questions left unanswered by the legislature at the time of the Work and Security Act with its own legal effect of Section 7:611 of the Civil Code. This was the case, for example, in the Xella and Victoria decisions. (1) If we survey the case law of Section 7:611 of the BW, however, it mainly concerns obligations of the employer. It is true that under Section 7:611 of the Civil Code the employee may not engage in competitive activity, even if no non-compete clause has been included (the same applies in the case of ancillary activities), but a comparison with privacy has not yet led to a duty to provide information. (2) Nor is that likely to happen any time soon, especially now that the legislature is leaving the corona measures to the citizen's own responsibility. Travel to code orange or red countries and also quarantine measures after returning from those countries are "only" urgently advised.
In short, I do not expect a court to impose a duty of information on the employee for the destination of his vacation.
Under Article 7:658 of the Civil Code, an employer has every interest in ensuring that no corona contamination breaks out on his premises. He will then not only be liable for the employees' damages, but his business may also be closed down. So the employer would like to know if he is at risk with employees returning from vacation. But if that employee is not required to disclose where he is going or has been, it becomes difficult to assess the risk. He can, of course, urge, or suspend, the employee to go into home quarantine. But who will pay for that? After all, the employee is not working and will certainly claim his wages because the employer is forcing him to stay home.
For that payment of wages, Article 7:628 paragraph 1 of the Civil Code provides a regulation: "The employer is obliged to pay the wages determined according to space of time if the employee has not performed the agreed work in whole or in part, unless the failure to perform the agreed work in whole or in part should reasonably be at the expense of the employee."
This is how Article 7:628 paragraph 1 of the Civil Code reads since January 1, 2020. The meaning is that the employee always retains the right to wages (100%) even if he does not work. Unless the employer can prove that the risk of not working lies with the employee. Two judges recently ruled on this allocation of risk for the situation under the corona pandemic. Both judges agreed: if the employee complies with the RIVM measures and is in home quarantine, he is entitled to continued pay. Even if he cannot perform home work. This corona situation is at the employer's risk. (3)
But what if the employee does not behave responsibly and goes to a vacation destination with code orange or red? While there is no case law yet on this situation, the government's site states that in that case the risk changes and if the employee goes into home quarantine after that vacation, the employee is not entitled to continued pay. Perhaps the government is anticipating case law a little too prematurely here, but let's face it: there is a lot to be said for that outcome. If the employee does not behave responsibly by traveling to a code orange or red vacation country, then he should not whine if he has to go into home quarantine upon returning home. I estimate that the judge will then indeed say that it is his risk that he went to that destination country. The employee will then not be entitled to wages.
But the question to be answered here is: what if the employer does not know that the employee went to a high-risk country. I think that if the employer has a strong suspicion that the employee has been on vacation in a high-risk country, it would be well advised to send the employee home or put the employee on suspension. Without payment of wages. The employee will then have to litigate to receive his wages. In those proceedings, the employee will have to make a strong case that he went to a non-risk country. If that does not become clear, I assume that given the current special situation surrounding corona, a judge will give the employer the benefit of the doubt, provided it had reasonable suspicions. The employee is then not entitled to wages in the home quarantine. Incidentally, in order to ultimately be stronger in litigation, the employer would do well to make employees aware of these risks in advance.
The employer cannot require the employee to go into home quarantine. If he suspects that the employee is violating the RIVM measures, the employer can only suspend the employee. Home quarantine will not be such a problem for the employer if he can assign work to the employee at home. It is of course different if the employee cannot do anything at home.
Of course, it may also be the case that the employee is sick when returning from vacation. In that case, article 7:629 paragraph 1 of the Civil Code applies: the employee is entitled to continued payment of wages (70% of the agreed wage, unless the employee is entitled to a higher percentage under the employment contract or the collective bargaining agreement). Can the employer then argue that an employee, who goes to an at-risk area, cannot claim continued payment of those wages because he intentionally went to that area? No, it can't. The court interprets intentionality strictly. After all, the employee did not travel to the high-risk area to necessarily get sick. He traveled there to take a vacation.
Can the employer possibly recover its damages, if other employees fall ill due to an employee's irresponsible behavior or if the company closes down, from that employee? Article 7:661 of the Civil Code was written for this situation. Only in cases of intent or deliberate recklessness to cause the damage can the employer recover damages. It will be clear that the employee did not travel to the vacation destination with intent or conscious recklessness to cause damage to the employer's business. Thus, the chances of recovering damages are virtually nil.
(1) Xella decision: HR 8 November 2019, ECLI:NL:HR:2019:1734 (employer obliged to cooperate in termination of employment contract at employee's request after two years of disability);
Victoria decision: HR 21 February 2020, ECLI:NL:HR:2020:283 (employee may be obliged to accept partial termination of employment contract).
(2) The obligation to provide information during the application procedure is regulated indirectly through the possible sanctions is in article 7:629 paragraph 3 under a BW (wage sanction) and in article 7:678 paragraph 2 under a BW (possible instant dismissal).
(3) Rechtbank Limburg 23 June 2020, RBLIM:2020, 4465; Rechtbank Noord-Holland 27 July 2020 RBNHO:2020:5863
This article can also be found in the files Privacy in the workplace and Coronavirus
