Article for SHRM by Dinah Wisenberg Brin:
Employees in the Netherlands would gain greater legal support for working from home under legislation expected to become law. The “Work Where You Want” proposal, which the Dutch House of Representatives approved in July, would oblige employers with 10 or more employees to accept workplace requests when certain conditions are met and would make it more difficult to refuse such requests, according to legal experts. The employer, after weighing the circumstances, would need to judge that its interests, based on a standard of reasonableness and fairness, take second place to the employee’s request, said Wouter Engelsman and Merel Keijzer, attorneys at CLINT | Littler in Amsterdam, in a joint e-mail. The desired workplace must be within the European Union (EU) and must be either the employee’s home address or another appropriate workplace where work for the employer usually takes place, they said. If the proposed workplace doesn’t meet these requirements, “the employer will still have the ‘duty to consider’ and, in case of refusal, discuss this with the employee,” they added.
The Dutch Senate appears likely to adopt the measure, according to the CLINT | Littler lawyers and Johanne Boelhouwer, an attorney with Dentons in Amsterdam. A Senate committee is scheduled to hold a preliminary investigation on Sept. 27.
Weighing Employer, Employee Interests
In principle, an employee’s request to work from home should be granted “unless the employer has an interest that outweighs the employee’s wish, according to the standards of reasonableness and fairness,” Boelhouwer said. “Factors that come into play here include, among others, the preservation of social cohesion in the workplace, the circumstance that an employer must bear a particularly heavy burden in proportion to the work at home or other work location, and the employer’s ability to pay,” she noted.
Under the legislation, the employee should submit the request two months prior to the intended effective date of the workplace adjustment, and the employer should decide in writing one month before the intended commencement date, according to Boelhouwer.
If the employer does not respond within that time frame, she said, the request can be considered approved. “It will be quite a challenge refusing working remotely due to the fact that employees were able to effectively work from home during the pandemic, facilitated by communication programs such as Zoom and Teams, if there is no need to work onsite,” Boelhouwer added.
Employers should know that “there soon will be a right in the Netherlands that strengthens the position of the employee to make a choice between working from home or from the business location,” Boelhouwer said. “If the employer grants the request to work remotely outside the Netherlands, there may be consequences from a tax and social security perspective and the applicable labor law in the employment contract,” she added.
Workers must be employed for at least 26 weeks before the desired start date of the requested change, according to the CLINT | Littler lawyers. A year must pass after the acceptance or refusal of a request for employees to submit new requests, they said. “It is advisable to think about and implement a policy regarding the practical steps to take in order to evaluate such a request, but also with regard to what is relevant for deciding what is reasonable and fair with regard to such requests,” they said. Working from a workplace in another EU country not only could have tax or social security consequences, “these factors could also be relevant considerations when deciding what is reasonable and fair,” they said.
A policy regarding remote work is a working conditions policy, and works council approval is needed to adopt, amend or withdraw such policies, according to Engelsman and Keijzer. The House approved the bill by a large majority, signaling a likelihood that the Senate will adopt the measure, Engelsman and Keijzer explained. If that happens, it’s possible the bill could take effect Jan. 1, 2023, they said. The bill would amend the Flexible Working Act, under which employees can request that their employer change work hours, work time or work location, the CLINT | Littler lawyers explained.
Currently, employers must accept a work time or work hours request unless serious business interests require a refusal, and employers may refuse “only in exceptional circumstances,” they said. With regard to requests to change the place of work, the Flexible Working Act currently requires the employer to only consider the request and, in case of refusal, to discuss the refusal with the employee.
A Reasonableness and Fairness Standard
The bill initially proposed to implement the “serious business interest” criterion for refusal of workplace requests as well, but this wasn’t well-received, according to Engelsman and Keijzer. Lawmakers changed the measure to specify the reasonableness and fairness standard, they explained. Enforcement would occur under the regular mechanisms available in Dutch labor law, Engelsman and Keijzer said.
The Dutch bill “does not constitute an unconditional right to work from home, but introduces a balancing of interests” and a right to request remote work, the CLINT | Littler lawyers said. “A right to request’ is under discussion in more countries, like Ireland and Slovenia. Other countries seem to be more focused on discussing and implementing new legislation in order to better regulate teleworking, while maintaining the voluntary character of teleworking/remote work for both parties,” they added.
Even before the pandemic, the Netherlands had the highest percentage of people working from home among European countries, the CLINT | Littler lawyers said.
