We were all used to the free movement of persons within the EU but things are so different now that we’re in the middle of the coronavirus crisis. Every country is implementing its own measures to protect its citizens and these measures can be problematic for Limburg’s many cross-border workers. What do these measures mean for them, and for their employers?

We understand cross-border workers to be employees working in the Netherlands but living, for example, in Belgium or Germany and who commute at least once per week between their country of residence and country of employment. Cross-border workers have an unusual position in employment law compared with employees who reside and work in the Netherlands. Read more here.

The following applies to cross-border workers who live in Belgium. The Belgian Minister for the Interior has made homeworking mandatory for all employees whose jobs are suitable for this or who work in non-essential industries. If homeworking is not possible due to the nature of the job, employers must ensure that they take measures to safeguard social distancing. The familiar 1.5-metre distance is of course important in this.

If a cross-border worker needs to travel to the Netherlands for his/her work, it is likely that s/he will be subject to border controls. In such cases, the worker must not only present proof of identity but must also present a certificate formulated by the Belgian government. Employers please note: if you have not yet completed and signed this certificate for each cross-border worker, you should do this now. You can find this certificate here.

We also recommend that employers write a letter to give to cross-border workers. In this letter you can state, as employer, that your employee who lives in Belgium is unable to work from home and must be present in person at your business location in the Netherlands due to the nature of the employer’s business and operational continuity, and employee’s job.

You can read more about the Belgian measures here in the Ministerial Decree dated 18 March 2020.

For employees living in Germany, the authorities there have also called for homeworking as far as possible. If an employee still needs to travel to the Netherlands for work, we advise that employers complete the Bescheiniging für Berufspendler. You can find this here. To be on the safe side, we recommend that employees also carry a copy of their employment contract and a recent wage slip. Your employees will then be less likely to experience problems at border checkpoints and can demonstrate that they need to cross the border.

Lastly, it is good to know that, during the coronavirus period, the Dutch, Belgian and German governments have agreed to consider homeworking hours (meaning hours worked in the country of residence) to be hours worked at the workplace in the country of employment. This prevents cross-border workers having to change the country in which they pay social security contributions.

You can find more information about the coronavirus and cross-border working here.

The employment lawyers at SPEE advocaten & mediation wish employers and employees at home and abroad every success in these unprecedented times. Please feel free to ask any questions about the legal implications of the coronavirus, for example with respect to employment and social security, by e-mail, telephone or Skype.