The possibility of introducing the Corona Access Pass (CTB) in the workplace has been a serious news topic in the Netherlands and beyond lately. Currently, Dutch employers cannot require their employees to show their CTB before entering the workplace. This may change shortly, as earlier this week a proposal for a temporary Act to expand the use of the CTB was submitted to the House of Representatives.
What is the proposal?
The proposal entails the following:
- a proposed extension of the obligation to have a CTB for workplace access to employees (including self-employed people and volunteers) in sectors where this obligation currently already applies to visitors;
- the option to require a CTB for jobs in sectors where there is currently no CTB duty;
- an extension of this obligation to people visiting the workplace.
The CTB for the workplace will be on the basis of ‘3G’, not ‘2G’. This means that an employee who has obtained a QR code on the basis of a negative test result is also permitted to access the workplace.
The government will determine the sectors in 2 above by ministerial order and will do so where it deems this necessary to limit COVID-19 transmission within the workplace.
This ministerial order will also establish that the CTB requirement under 2 above will not apply where employers can provide a comparable level of protection. The criteria for what is considered to be a ‘comparable level’ will also be set out in this ministerial order.
Although it is the government that decides on the sectors in which the use of a CTB will be required, employers in that sector will have the option not to use the CTB but instead to take the measures needed to provide for a ‘comparable level’ of protection in the workplace.
Disciplinary measures for refusal?
According to the government, ‘in the context of good employment practice and good employee behaviour’, the employer and employee must try to reach a suitable solution in cases where an employee cannot (or refuses to) show a CTB. This may include, for example, temporarily carrying out work duties in an adjusted form, work from another location or temporarily doing other work.
Where this does not lead to a solution, the employer may deny the employee access to the workplace. In that case, the question is whether the employee remains entitled to continued salary payment. The general principle is that an employee remains entitled to his or her salary even if s/he does not perform the agreed work. This principle is, however, not absolute. The government considers that if non-performance should reasonably be attributed to the employee, this should no longer be at the expense of the employer. According to the government this could be the case if an employee cannot or is not willing to show a CTB, does not follow the employer’s reasonable instructions or refuses the employer’s reasonable alternative working arrangement proposal. In making that assessment, an important factor is the employee’s ability to undergo testing to obtain a CTB, and whether, given the frequency and concrete testing opportunities available to the employee, this could reasonably be required of the employee.
The government has gone one step further and proposes that if the employer and the employee cannot reach a mutually satisfactory solution, the employer may, as a last resort, choose to terminate the employment contract. However, this will only be possible in exceptional cases.
Prior to submitting the act to the House of Representatives, advice was requested from the Council of State. The Council found the current proposal to be very complicated for employers in sectors that are not subject to the CTB requirement. It considered the regulation may lead to undesirable conflicts in the workplace, where an employer will be caught between vaccinated and non-vaccinated employees. The Council therefore recommended amending the current proposal so that the legislator itself makes the choice on when and how a rule applies, instead of placing this responsibility on the employer.
At the time of writing, the proposal is being discussed in the House of Representatives. If the House passes the bill, it will be submitted to the Senate for further debate and acceptance. The law will only come into force when accepted by the Senate. We will of course keep you posted on the developments.
This article was written by our colleagues from Bronsgeest Deur Advocaten, the Dutch Ius Laboris member.