Right to work from home due to corona crisis?

As an employer, you do not always have to agree to a homework request due to the corona crisis. That is what the subdistrict court of the Gelderland District Court recently ruled in a case in which an employee had asked whether she could work from home until September 1 due to the corona crisis. The employee's request was rejected by the employer. The subdistrict court ruled in favor of the employer.

Employee's claim

The employee argues that, due to the current corona crisis and pursuant to the Flexible Work Act, she requested and received permission from her employer to work from home. Second, she believes that her place of work, at least until September 1, 2020, should be changed to allow her to work at home. According to the employee, by not allowing her to work at home, the employer is acting in violation of good employment practice, the authority to instruct and the duty of care. The employee's claims were rejected by the subdistrict court.

Advice government

The government's generally worded advice to work from home as much as possible applies until September 1. According to the court, this advice does not interfere with a specific legal relationship to the extent that an employee can derive a "right to work at home" from it. If working from home is not possible for the employee, the employer can in principle require the employee to come to work. This may also be the case if the employer can provide a reasoned explanation as to why it is crucial for the employer that employees are present at the workplace. Reasons such as "it is easier for colleagues to confer at work" or "it is better for group spirit" will not stand a chance of success in that context.

In the present case, the employer explained that it is necessary, especially in this economically exciting time for her, for employee to be present at the workplace. There are packages to be accepted and orders to be processed and then shipped. In addition, the employee supervises a colleague. Due to the workload of the employee's two immediate colleagues, these tasks cannot be handed over to them alone. Given the foregoing circumstances, these activities can only be physically performed at the workplace. Therefore, in this situation, the employer was entitled to require the employee to return to work.

Duty of Care

However, the above is only applicable if the employer ensures a safe and healthy workplace and takes measures that reduce the risk of infection. These measures must be in line with RIVM guidelines. By drawing up a corona policy and providing each employee with their own office space, reducing the number of chairs in the canteen and providing disinfectants, the employer in this case had fulfilled its duty of care.

In short

The government advice to work from home as much as possible until September does not mean that the employee can derive from it the right to work from home. If the employer wants employees to come to work, he must be able to give a reasoned explanation as to why working from home is not (sufficiently) possible. The employer is also obliged to ensure a safe and healthy workplace. If the employer has fulfilled these two conditions, then there is no violation of the obligations arising from good employment practice, its instructional authority and/or the duty of care. In that case, the employee is obliged to attend. If she fails to do so, it is in fact a case of work refusal.

Meanwhile, D66 and Green Left did make proposals to make working from home a legal right. But there is no mention of this at this time.

We will, of course, keep you informed of developments.

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