Exceptions to corona rules for workers in essential business processes

With the spread of the omicron variant of the coronavirus, most of us are confronted with the rules regarding isolation and quarantine. This also has a major impact on the workplace. Many employers struggle to staff their companies. But did you know that there are exemption rules for employees in essential business processes?

What is an essential business process?

An employee who works in an essential business process may still go to work under certain conditions (see below). But to which employees does this apply?

• It must concern an employee who is essential for the continuity of the organisation. Without this employee, business operations would be seriously impaired.
• The employee cannot be replaced.
• The employee cannot do his or her job from home.
• The employee has no corona symptoms and has not tested positive for corona

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When can an employee come to work anyway?

• If he or she has been in close contact with a person who tested positive or if the employee shares his or her home with a person with corona. Close contact is defined as having been within 1.5 metres of a corona affected person for at least 15 minutes within a 24-hour period. As mentioned above, the employee must not have corona symptoms himself and should be tested negative.
• If employer and employee meet a number of conditions:

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1. The employer shall consult with the Works Council, staff representative body or staff association on which functions are essential. The employer requires the consent of the Works Council or staff representative body or the advice of the staff association.
2. Employer and employee agree in consultation on which business processes are essential.
3. The current risks are included in an RI&E.
4. The employer and/or employees can ask a company doctor or health and safety service for advice, based on the RI&E. The exceptions for essential business processes must not lead to an increase in infection risks on the work floor.
5. The employee always has the choice to go into quarantine and not come to work.
6. There is no testing requirement.

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What to do if an employee (in an essential business process) comes to work?

Employers and employees must make agreements to ensure safety in the workplace. The employer and employee are jointly responsible for complying with the guidelines. The following applies here:

• Employee takes a self-test every day before starting work. Employer shall make these tests available free of charge.
• On day 5 after the close contact with the infected person, the employee has himself tested at the GGD.
• The employer shall provide mouth-nose masks at the workplace.
• Everyone keeps a distance of 1.5 metres at the workplace.
• The employer shall ensure that the workplace is properly ventilated.
• In case of corona symptoms, the employee goes home immediately and is quarantined.
• The directives do not infringe on existing labour relations or workers' rights

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Where can employees make complaints?

Employees can report complaints or signals about safety in the workplace or the conditions under which work has to be done to the Labour Inspectorate (in Dutch: Arbeidsinspectie). The existing protocols apply to the health care sector.

Conclusion

Do you also have questions about the corona rules in the workplace? Or are you an employer or employee and do you have any other questions relating to employment law? The team of SPEE advocaten & mediation is ready to assist you.