The legislative bill on the temporary extension of the use of temporary corona passes (in Dutch: wetsvoorstel Tijdelijke wet verbreding inzet coronatoegangsbewijzen) was submitted to the Lower House of Parliament the evening of November 23. Under this proposal, it will be possible in some cases for employers to require a corona pass from employees, self-employed individuals and volunteers. This bill is intended to help combat the explosive climb in coronavirus infection numbers that we have seen in recent weeks.
Sanctions for refusing to show a corona pass
According to the bill’s Explanatory Memorandum, employers will be given options for sanctioning employees who do not cooperate with the obligation to show their corona pass. In such cases, the employer and employee should try to reach a suitable solution “while observing good employer and employee practices.” This could include the work’s being modified temporarily, or a temporarily having the employee in question do different work.
If these solutions do not work, however, the employer may deny the employee access to the workplace. If it does, the question is then whether the employee retains the right to be paid. The government's thinking on this is that if not doing the work can reasonably be attributed to the employee, then that will not be the employer's financial responsibility. This would be the situation, according to the government, if an employee who refuses to show a corona pass also refuses to follow the employer’s reasonable instructions or had no reasonable reason to refuse the employer’s alternative proposal. An important factor in making this assessment will be the actual opportunities that the employee has for getting a test in order to obtain a corona pass, and whether, given the frequency of testing required and the employee’s actual opportunities for getting tested, the employee can reasonably be asked to do this.
Dismissal as the final recourse
But the government is going one step further, saying in the legislative bill that if the employer and employee cannot reach a solution that is satisfactory for both, the employer may opt to terminate the employment contract as a final recourse.
We will, of course, keep you posted on developments regarding this legislative bill.