De onschuldpresumptie in zaken tegen de overheid
Last week, the RIVM has published recent numbers showing that more than half of all employees is still working from home, in accordance with the government guidelines. On the other hand, there are also employees who are (now again) working at the workplace. In both situations, employers are expected to anticipate on this in the company's occupational health and safety policy, even more since the corona crisis is expected to continue for some more time and working from home will therefore remain the norm for the time being. It has emerged that the Labor Inspectorate (“arbeidsinspectie”) is increasingly examining whether employers' health & safety policy is in line with the circumstances and risks regarding the current corona crisis.
It follows from the working conditions legislation (“arbowetgeving”) that employers are also responsible for a safe workplace in case employees are working from home. Sometimes this can be difficult given the fact that the possibilities in the context of supervision and monitoring of the home workplace are actually limited. Also, employees often do not have access to a responsibly equipped workplace. The employer must anticipate on this, for example by offering ergonomically responsible materials (keyboard, mouse, desk chair) and by informing employees about how to work safely at home. Structural home working may also have psychological consequences for employees. Employers must pay special attention to this, including in the context of the policy regarding the psychosocial workload that must be included in the risk inventory (RI&E). Employers may also offer support for the problems employees encounter when working from home. In general, it is advisable to lay down the agreements concerning working from home in an agreement.
Also in case employees work from the workplace, there are a number of "new" circumstances that the employer must take into account. The Labor Inspectorate has indicated that employers are obliged to take sufficient measures to guarantee the health of the employee as much as possible. This obligation also follows from the working conditions legislation. The measures that can be taken to protect employees against the coronavirus are, for example: mandatory walking routes, placing screens and drawing up and complying with a cleaning and disinfection policy. In addition, special attention must be paid to the ventilation possibilities in the company building. Whether sufficient measures have been taken will always depend on the specific situation. The frequency of work at the workplace, the number of employees present and the surface area of the building are important in this context.
What can be done by the employer in order to make its health and safety policy "corona proof"? It is not easy to say whether a health and safety policy is "corona-proof". Nevertheless, there are a number of steps that every employer can take to bring the policy (more) in line with the requirements of the working conditions legislation. Please find a number of practical tips below:
Working from home? If it is necessary for business operations, it is permitted - in accordance with government measures - to work at the workplace. The employer must make a well-considered decision in this regard. In the event of an inspection by the Labor Inspectorate, the employer must be able to demonstrate that the relevant circumstances were considered when making this decision. Therefore, it is advisable to lay down in writing the considerations that have led to the decision whether or not to work from the workplace. More specific, attention must be paid to which activities and positions could not be performed from home, either partially or entirely, and for what reasons.
Amend risk inventory – analyze the risks and possible measures: As described above, both in the case of working from home and working at the workplace, there are specific circumstances that the employer must anticipate on. Employers must identify what risks are present within the company and what measures can be taken to limit these risks. This must then be included in the mandatory risk inventory. The risk inventory will also have to be submitted to the Labor Inspectorate in case of inspection of the company. The Social and Economic Council (“Sociaal Economische Raad”) has developed a manual that can be used when amending/complementing the risk inventory.
Discuss the subject with your employees: It is also desirable to have conversations with the employees about the way in which work is carried out in times of the corona crisis. Not only because it is mandatory for the employer to involve the employees in the company's occupational health and safety policy, but also because they may come up with other practical issues than those already envisaged by the employer.
In case the Labor Inspectorate carries out an inspection and comes to the conclusion that the occupational health and safety policy is not (sufficiently) aligned with the corona crisis, the employer will have to adjust the policy within a specified period. In addition, the Labor Inspectorate may decide to impose a fine. To prevent this, we advise you to act now by amending the occupational health and safety policy in the way described above.
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