During the pandemic, there has been an acceleration of remote and flexible working, and this has posed both opportunities and challenges for employers. There has also been an increase in regulations that govern remote working across the globe. We are already advising clients on this area of remote working and a number of issues arise. This note provides you with an update with regard to working from home in the Netherlands and upcoming new legislation in this respect.

COVID-19 restrictions

Since March 2020, the Dutch government’s recommendation has been for employees to work from home as much as possible. In principle, everyone should work at home. Only employees who are essential to the business should be allowed on the premises. Examples of personnel critical for business continuity are employees performing activities in, amongst others, hospitals, nursing homes, grocery stores, manufacturers and distribution centers. A bus driver goes to work, but support staff at the office should work entirely from home.

Although it is a recommendation, employers should see it as an obligation to facilitate their employees to work from home as much as possible. Allowing employees to work on the premises will not be considered critical to the business very easily.

The right to work from home

At present, a right to work from home is not embedded in Dutch employment law. The Flexible Work Act (in Dutch: Wet flexibel werken) regulates the rights of the employee regarding working hours, working time and place of work. If an employee wants to change his/her place of work, a request can be submitted to the employer, provided that the employee has been employed by the relevant employer for six months. After submitting the request, the employer is obliged to consult with the employee, but may subsequently reject it on any grounds.

This is different from the case of a request to change the working hours or working time. In case an employee requests for a reduction in working hours, the request must be granted by the employer, unless there are compelling business interests. When rejecting the request, the employer should explain why there are compelling business interests in place. Examples are economic, technical or operational interests that would cause serious harm to the business. According to the Flexible Work Act, these interests include serious safety or scheduling problems.

In the event an employee wishes to spread working hours differently over the week, an employer should in principle also determine this in accordance with the wishes of the employee. However, if the employer considers another distribution desirable and necessary, the employer does not need a compelling business interest but an interest that outweighs the employee's wish according to the standards of reasonableness and fairness. This is not as strict as having to prove a compelling business interest.

The above does not (yet) apply to the place of work. Although court rulings have been published in which an employer had to allow an employee to work from home under certain circumstances, employees are likely to be dependent on employer flexibility to work from home again when the COVID-19 pandemic ends. Working from home may be feasible for employees in particular roles or at particular times, and appropriate if work can be performed at home as effectively as at the organization’s premises.

It is possible to agree to employees working partly from home either on an occasional or regular basis, provided that such an arrangement is suitable for both parties and is likely to facilitate effective and efficient working. Working from home may become an entitlement rather than a flexible work option if the working from home continues on a regular instead of on an ad hoc basis. 

Although working from home does not change employee obligations under the terms of the employment agreement and company policies, it is recommended to agree specific working from home arrangements with the employee, either in a policy, or if it only concerns some individual employees, in an addendum to the employment agreement. For example, an employee could be asked to remain contactable during work hours, attend face-to-face meetings at the premises when necessary, take reasonable precautions to protect company property and information, cooperate with health and safety inspections etc. It is also important to include under which circumstances the arrangement can be withdrawn. For specific employer obligations with regard to working from home, please refer to the paragraph below.

Please note that the works council (if any) should be involved if the company is considering a working from home policy. Additionally the employees’ consent may be required. We are happy to assist your company in drafting the necessary documentation, to provide for support in your communication with the works council and in implementing the working from home arrangement.

Obligations

Under the Dutch Working Conditions Act and the Dutch Civil Code, employers are responsible for providing a safe and healthy workplace and to keep employees informed about health risks that may arise in performing their duties. This is also applicable for employees working from home. It may imply that an employer conducts a risk inventory & evaluation (RI&E) of the occupational risks related to working from home and the measures to be taken to mitigate these risks. In what manner an employer ensures such adequate care, can also be described in a working from home arrangement.

Pursuant to this, employers are obliged to provide for an ergonomic workplace (e.g. chair, monitor, keyboard) and artificial lighting facilities, unless the employees already have these. In addition, an employer is responsible for the proper connection of electrical equipment or installing pipes/cables if that is necessary for working from home. The related costs of the aforementioned are in principle paid by the employer. For tax aspects please be referred to the paragraph below.

If an employee suffers damage during the performance of work, the employer is in principle liable, unless it can either prove that it has fulfilled its duty of care towards the employee or the damage is caused by the employee’s intent or deliberate recklessness.

Tax aspects

Under the work-related costs scheme (in Dutch: Werkkostenregeling, WKR), it is possible to provide employees with tax-free reimbursements, allowances or benefits in kind. Examples of reimbursements or benefits are expenses the employees incur for internet at home, as well as for necessary tools, computers, mobile communication equipment and similar means of communication and gifts or company outings.

The WKR permits employers to spend part of the total fiscal wage (i.e. the WKR budget) on tax-free reimbursements for your employees. For 2021, the WKR budget is increased to 3% of the fiscal wage up to and including €400,000 plus 1.18% of the fiscal wage exceeding €400,000.

In addition, the Dutch government announced that employers are still allowed to reimburse fixed travel expenses tax-free until April 1, 2021. Even if the employee does not actually incur the travel expenses because he is working from home, it is possible to grant the tax-free reimbursement, under the condition that the reimbursement of fixed travel expenses was already granted before March 13, 2020.

Future legislation

On January 27, 2021, a legislative proposal ‘Work Where You Want’ has been introduced in the Dutch House of Representatives. This Work Where you Want Act amends the Flexible Work Act. With the proposed amendment, the request for a change of the place of work will be treated in the same way as a request for an adjustment of the working time or working hours as described above. This means that the employer in principle should grant a request to work from home, unless there are compelling business interests. When rejecting the request, the employer must explain why there is a compelling business interest. This strengthens the position of the employee to make a choice between working from home or from the business location. Moreover, it will be quite a challenge refusing working from home due to the fact that employees were able to effectively work from home during the pandemic facilitated by communication programs such as Zoom and Teams.

If the House of Representatives is positive about the proposal, it will be dealt with by the Senate and subject to its favorable vote too. The envisaged enforcement date of the act is not yet known. Obviously, we will keep you posted.