Thanks to the relaxation of the measures to control the coronavirus outbreak, more and more employees are able to return to the office. Nevertheless, the government’s advice remains to work from home as much as possible. Can an employer force employees to return to the office?
No legal right to work from home
There is no absolute right to work from home. The Dutch government’s advice to work from home as much as possible does not change this. The Dutch Court recently ruled that an employee cannot insist on working from home because of the coronavirus outbreak. The employee in question worked from home as of 15 March 2020 due to the coronavirus outbreak. On 6 May 2020 all employees were informed that everyone should return to the office and that measures had been taken to provide a safe workplace. The employee requested to continue working from home referring to the government’s advice to work from home as much as possible. The employer denied the request.
The judge ruled that the governmental advice to work from home as much as possible does not give an employee the legal right to work from home. The employee must therefore agree to the employer’s request to return to the office.
Working from home only allowed with the employer’s consent
If an employee prefers to work from home, the employee can submit such a request at the employer based on the Flexible Working Act. Every employee who has been employed for at least six months may submit such request. The request must be submitted in writing at least two months before the desired start date.
The employer is merely required to seriously consider such request. If the employer does not consider working from home desirable, he may simply reject the request informing the employee in writing of the reasons why. The employee can submit a renewed request only one year after the employer has rejected the request. If the employer does not respond in writing on the request one month before the desired start date, the request is deemed to have been granted.
The above rules do not apply to small companies with fewer than ten employees. The employer and employee would then need to agree on working from home arrangements.
In some cases, the employer’s responsibility may require the employer to cooperate with the employee’s request to work from home, for example if (a) the employee in is frail health, (b) safety in the workplace cannot be guaranteed and (c) working from home does not pose any problems for the business. In such circumstances a good employer can be expected to allow employees to work from home.
The employer must provide a safe workplace
The employer must provide a safe workplace. If the employee works from home, the employer must provide instructions regarding a safe workplace at home. For instance, the employer must ensure that the home office is designed ergonomically and that the employee takes sufficient brakes. It is possible to use a checklist regarding the home office, that the employee must complete regularly.
Working from home outside the Netherlands
Many foreign employees (expats) have returned to their home country because of the coronavirus outbreak. If an employee performs work long-term outside the Netherlands, this may have consequences for social security and taxation and may affect a Dutch residence permit. Also, if applicable, the 30% ruling may be affected. The exact consequences depend on various circumstances including the country where the employee performs his or her work and the duration of the employee’s stay abroad.
Should the employee become ill during his stay abroad, the employee is required to visit a local doctor examining the employee’s ability to work. The employer cannot require the employee to visit the company doctor in the Netherlands.
The employer’s obligation to ensure that the employee has a safe workplace at home remains applicable, even outside the Netherlands.
It is advisable that the employer and the employee make good arrangements by mutual consultation regarding working from home in the expat’s home country.
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 Court Gelderland 16 June 2020, ECLI:NL:RBGEL:2020:2954.
 This Act entered into force on 1 January 2016.
 The Netherlands is party to various international tax treaties that may be applicable in such situations.