Since 13 March 2020, corona measures have been in force, such as keeping a distance of 1.5 metres, staying at home if you have health issues and applying hygiene measures. How do these measures affect employers, employees and the situation at the workplace?
The measures are included in (local) emergency orders. The Inspectorate SZW does not have any authoritative role in this; the safety region, the police, municipal special investigation and arrest units and the military constabulary can take action when these measures are not being observed.
Dutch Working Conditions Act and RI&E
Based on the Dutch Working Conditions Act, employers have a duty of care, which means they have to make it possible for their employees to do their work in a healthy and safe manner. This means that employers analyse the risks and decide how to deal with them. Employees must know which measures apply and abide by the rules imposed.
Working conditions legislation serves as a guiding principle for the actions of the Inspectorate SZW in relation to the corona situation. The health and safety of employees come first.
The Dutch Working Conditions Act is a framework act. The working conditions-related rules are elaborated in the Dutch Working Conditions Decree and the Dutch Working Conditions Regulations. A company’s working conditions policy fully depends on a thorough Risk Inventory and Evaluation (RI&E) by the company. One element is drawing up a plan of action to prevent and avoid risks and reduce their consequences.
Based on working conditions legislation, the Inspectorate SZW monitors unhealthy/unsafe situations. Because of that legislation, the Inspectorate can take enforcement measures to advance compliance. This also includes unhealthy and unsafe situations as a result of the risk of corona infection.
These obligations are laid down in Articles 3 and 5 of the Dutch Working Conditions Act. For exposure to the coronavirus, two situations are defined:
- Situations in which exposure is a direct result of the work carried out.
- Situations in which the risk of exposure follows from the general risk of infection in the Netherlands.
Exposure as a direct result of the work carried out
Some employees run a risk of being exposed to the coronavirus due to the nature of their work. These employees include healthcare staff (carers, nurses, doctors, etc.) who work with corona-infected patients. They also include staff who have to remove or clean material that may be infected with corona. This group of employees is subject to specific rules (biological agents legislation, Chapter 4, section 9 of the Dutch Working Conditions Decree). In this situation the Inspectorate SZW takes enforcement measures based on that decree.
Exposure following from a general risk of infection
This concerns other workplaces in companies and institutions such as supermarkets, distribution centres, offices, the construction industry, the agricultural industry, the transport sector, the metal industry, etc. It may also concern non-patient-related work in the healthcare sector. The Dutch Working Conditions Act stipulates that the employer is responsible for the health and safety of employees regarding all work-related aspects and that he must have a policy in place for that (Article 3 of the Dutch Working Conditions Act). Based on Article 5 of the Dutch Working Conditions Act, the employer also lays down the working conditions policy in a RI&E. This RI&E describes the hazards and risk-reducing measures. The coronavirus is one such hazard in the workplace.
The Inspectorate SZW’s monitoring and enforcement aim to realise compliance with these statutory obligations. This means that in every individual case, an assessment must be made of how the employer fulfils his obligations from the perspective of the working conditions. Initially, it is up to the employer to implement the policy together with his employees.
Enforcement measures based on government measures are taken primarily by the safety regions, as mentioned before.
This does not change the fact that the Inspectorate takes enforcement measures as well. To avoid any misunderstanding, the Inspectorate SZW issues this message to announce that she will take enforcement measures if the working conditions at a company or institution give rise to this.
Enforcement measures are appropriate if there is a risk of infection, if no or not enough measures are taken or if the industrial hygiene strategy is not applied in the process. Apart from the specific situation and risks at a company or institution, the Inspectorate also includes in its consideration that the social consequences of corona infection and the unprecedented measures taken, give the importance of fulfilling the care of duty under the Dutch Working Conditions Act extra meaning.
If necessary, a formal demand is imposed along with the measures to be taken, which the employer must then implement. If an employer does not agree with such a demand, the normal objection and appeal procedure will apply. A failure to fulfil the obligation may result in further administrative measures such as a fine and further-reaching administrative pressure to fulfil the obligations after all.