LEGAL UPDATE: NO FACE MASK, NO PAY!

Last week, the Dutch District Court (Preliminary Relief Judge in Utrecht) ruled in summary proceedings that an employee is obliged to wear a face mask if the employer demands this of its employees by invoking the right of instruction under art. 7: 660 Dutch Civil Code. In the event of non-compliance with reasonable instructions, the employer may suspend wages and suspend the employee as long as the obligation has not been met.

The present case concerns an employee employed by a bakery. In the position of driver, the employee is responsible for delivering goods between buyers and suppliers. In October 2020, the employer imposed a mask obligation in the workplace due to the corona pandemic. The employee then refuses to wear a face mask. According to the employee, the instruction to wear a face mask would be an unlawful infringement of his privacy under art. 10 of the Dutch Constitution as this would cause nuisance, inconvenience and health risks. In addition, it was argued on behalf of the employee that the employer should have exempted drivers from the mask obligation, since the employee is mainly alone on the transport. After several warnings, the employer suspended continued payment of wages and suspended the employee from work. The employee then initiates summary proceedings and demands additional payment of his wages and admission to work.

The preliminary relief judge states that, in principle, an employee must comply with the instructions of his employer. This is only different if the right of instruction violates constitutional rights of the employee. However, in this case, the mandatory mask obligation serves two legitimate purposes: (i) the employer is obliged to provide a safe working environment and (ii) has a business interest to protect (in view of, among other things, the obligation to continue to pay wages in the event of illness). It is important that the face mask is a socially accepted means of preventing the spread of the Corona virus. For that reason, when exercising the right of instruction, the employer could assume that wearing a face mask can contribute to the safety and health of the work environment. The preliminary relief judge also rejects the employee’s assertion that the employer should have differentiated according to positions within the company. The employer has an interest in drawing a line: the employee is part of a work organization and has to take the interests of other employees into account. In other words: a mask obligation is only effective if everyone adheres to it. Furthermore, the preliminary relief judge finds it important that the employee only has to wear a face mask on the work floor (10-20% of the time) and not during transport (80-90% of the time). There is therefore no question of an unlawful infringement. The judge dismisses the employee’s claims.

In short, employers are allowed to oblige employees to wear a face mask on the basis of the right of instruction under article 7: 660 BW. If an employee does not comply with the instruction, the employer may suspend wages and deny access to work. In practice it remains important that the court will always have to weigh up interests based on the circumstances of the case when invoking privacy. This means that personal circumstances on the part of the employee and circumstances at the employer can mean that sanctions for violation of a masking obligation are not considered justified in another case. This specific employer has now submitted a request for termination by the Dutch court. The Subdistrict Court will have to decide whether the complex of facts justifies the employer’s request for dissolution. To be continued…