Publication date: 2 April 2020
We assist our clients with legal advice on how to limit the impact of the coronavirus crisis. In our blogs we respond to questions about the government measures to tackle Covid-19, working from home, privacy, fulfilling commercial contracts, force majeure and travels to the Netherlands. We are also easily accessible during the coronavirus crisis to help you limit the damage to your business. Click your questions below.
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Whether or not you have to pay compensation depends on the arrangements you made in case you are not able to fulfil the contract. If you have included an exoneration clause in your General Terms & Conditions and these are applicable, make sure to check whether the clause covers this situation. If that is the case, you can rely on it and you will probably not have to pay compensation. However, it may be the case that the agreement contains a penalty clause. In principle, you will have to pay this fine. It is even possible that, in addition, you may have to pay compensation. If you have not arranged anything, you can try to invoke force majeure. In that case you are, in principle, not liable for damages. However, it is extremely doubtful whether your counterparty will easily agree to that.
It is not up to the employer to assess whether an employee is sick. Only a company doctor or an occupational health and safety service physician may examine and assess whether employees are sick or not. If you ask an employee whether he has Covid-19, he or she does not have to answer the question. If you suspect that your employee is infected, you can refer him to the general practitioner or the GGD.
As an employer, you cannot require employees to be tested for the coronavirus or, for instance, to have their body temperature taken. Such data are special category personal data under the General Data Protection Regulation (AVG).
The national government advises Dutch people to return to the Netherlands as soon as possible. Many countries lock down or take other restrictive measures. The advice therefore does also apply to your employee. As a good employer, contact the employee and see what the possibilities are for return. You will have to bear possible extra costs for repatriation or extended stay, as the employee makes the costs on your behalf.
Yes, you have to continue to pay wages. If your employee is sick and also has to be quarantined because of the infection risk, this is no different to other sickness reports. The employee is entitled to continued payment of wages during sickness in accordance with the arrangements made in the employment contract, collective agreement and/or the employee handbook. That is at least 70% of the wages, but usually it will be more.
Is your employee in quarantine, but he/she is not sick? In that case, your employee is entitled to full payment of wages. In consultation with your employee, you can look into the possibilities of working from home while your employee is quarantined.
Only in very special cases, you do not have to continue to pay wages, for example, if your employee deliberately and against your express wishes travelled to a risk area. In that case, you must have informed the employee of the consequences in advance.
If the lessee wishes to change the building to limit the risk of infection for employees and customers, the costs must be borne by the lessee. In principle, the lessee requires (prior) consent from the landlord for changes to the leased property. There is a statutory exception for adjustments which will be undone or removed – at the latest – at the end of the lease period without any notable costs. An example for this exception are, for instance, the perspex screens currently used in supermarkets for the protection of customers/staff at tills to ensure that people keep sufficient distance.
Here, the same applies as for rent reduction. A change to turnover rent requires – just like any (interim) change to the lease – the tenant’s consent. The idea behind turnover rent is that the tenant has to pay less in times of economic downturn (or when the number of visitors in the shopping mall declines), whereas the lessor can benefit from the tenant’s higher turnover during times of economic boom. Turnover rent in times of corona will chiefly be to the disadvantage of the lessor, however it could be suggested with the prospect for the lessor that he will receive more rent in better times. Of course, there is a lot of uncertainty for both parties now.
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