The total number of vaccinated people worldwide is increasing and in response more and more countries are relaxing their coronavirus measures. No doubt this relaxation of restrictions will make employees decide to enjoy their newly gained freedom by going on vacation. At the same time, however, most employers would prefer their employees to stay and work hard to improve the uncertain economic position of the organization. What can you do?
Although a lot is still unclear about the degree of relaxation of coronavirus measures and the opening up of borders worldwide, it is clear that the governments of virtually all European countries aim to give their citizens more freedom to move around this summer. Most employees have thus far been careful in making travel plans, including for their summer vacation, but the current developments could mean that we will soon witness an exodus of employees going on vacation. It is advisable your organization informs its employees about this mass departure of vacationers and give them instructions regarding health and safety. Moreover, you should also get to work preparing a plan of action for staffing during this period of mass vacationing.
Discussing your travel plans and drawing up a vacation schedule
Of course, the first step is for departments and teams to discuss travel plans and draw up a schedule for when different employees go on vacation. Very likely, they will manage to do so. If your organization communicates well with its employees and gives clear instructions about the expectations, risks and rules regarding vacationing in the upcoming period – possibly coming from your organization’s travel policy – employees and managers can draw up an appropriate vacation schedule.
If an employee’s travel plans will result in understaffing, it usually suffices to discuss this with the employee in question and appeal to his/her sense of responsibility. You can find a solution together, for example by making changes to the permissible vacation periods, approving a vacation at a later moment in the year, temporarily employing staff from an employment agency or other organization(s), or the granting of a (financial) compensation to the employee.
Request for annual leave and compelling interests
Travel plans are usually made far in advance, but the uncertainty of the coronavirus pandemic can throw a spanner in the works. Discussions about travel plans may therefore arise nonetheless, even to the extent where you want to forbid employees from going on vacation. Such a decision is subject to the legislation on annual leave, covered by Articles 634 through 645 of the Civil Code of the Netherlands (‘Burgerlijk Wetboek’ in Dutch), to be found in volume 7.
By law, employees must be given the opportunity each year to take annual leave. Important here is that employees are in principle free to choose when they want to take this leave. Moreover, they must be given the opportunity to take annual leave of at least two consecutive weeks or two times a full week.
If an employee wants to go on vacation, he must inform his manager – who acts on behalf of the employer in this regard – in writing of the dates (s)he wishes to take annual leave. The manager must in principle grant the request for annual leave, unless there are compelling business interests to refuse it. The employee must be informed of the decision (i.e. request granted or refused) through a written reaction within two weeks after having submitted his/her request for annual leave. If the reaction arrives too late, the employee is automatically granted annual leave as requested.
Compelling interests after having granted request for annual leave
What happens if a manager has granted an employee’s request for annual leave some time ago but concludes afterwards that the employee cannot be missed in the period (s)he is going on vacation? If the manager can provide a good reason for why the employee cannot be missed – i.e. a compelling business interest – the manager may alter the planned dates for annual leave, after having discussed it with the employee in question.
Keep in mind the rule that an organization must timely determine the definitive dates of annual leave so that the employee can make all the necessary preparations for his/her vacation.
Furthermore, the employee may have already incurred expenses for his/her vacation. For example, (s)he has paid for plane tickets or made an advance payment for the accommodation. By law, your organization must reimburse any such expenses if the dates of an employee’s granted annual leave are altered. For this reasons, such alterations should only be made if there is really no other option left.
What is a compelling interest?
In case the drawn up vacation schedule unexpectedly turns out to cause staffing (or other) problems for your organization, it is important to know what counts as a compelling business interest to refuse – or alter – a request for annual leave. In other words: what if understaffing is looming on the horizon and employees nonetheless appeal to their statutory right to go on vacation?
Something isn’t quickly considered a compelling business interest in this regard. Your organization must really face imminent and substantial problems as a result of an employee’s absence. This could perhaps be the case in the post-pandemic years, especially for smaller enterprises, where business viability depends on the revenue gained in the upcoming period and is dependent on only a handful of employees.
Still, the bar is set high. In order to assume that an employee’s vacation will cause a severe disruption in business viability or even result in bankruptcy, something exceptional must be going on. There must really be no reasonable option for your organization to transfer the work to be done to someone else.
It is therefore advisable to have a plan of action with respect to employing temporary staff, such as on-call workers or freelancers, to take over the tasks and duties of employees on vacation. If necessary, create a pool of temporary workers and have them learn the ropes before your regular staff goes on vacation.
If you nonetheless decide to refuse a request for annual leave, it is very likely the employee in question will not take any legal action. However, it will damage the professional relationship between you and the employee.
Deviating from the statutory rules
Organizations may deviate from the statutory rules on annual leave through agreements in the collective labor agreement or a written agreement between employer and employee (such as the employment contract). This way, employers have more control over when annual leave can be taken and by what date requests for annual leave must be submitted.
The option to deviate from the statutory rules also permits organizations to allocate a certain period for (collective) vacationing, which already happens through certain collective labor agreements and the employment terms and conditions in certain industries. Examples are the ‘bouwvak’ (the collective vacation period in the Netherlands for employees working in construction) as well as the school summer vacation. However, such an allocated vacation period does mean that the vacation schedule is less flexible, meaning that you will have less options to tackle a possible sudden peak in activities after the coronavirus pandemic is over.
More discussion points for vacationing during the pandemic
- An employee may request to have already granted annual leave cancelled because there is a travel restriction or prohibition in effect for the country (s)he wanted to travel to for vacation. Legally speaking, it is not mandatory for your organization to cancel the annual leave upon such a request. However, if the employee is prevented from using annual leave to ‘recover’ from work and the cancellation of the already granted annual leave brings little disadvantage to your organization, you must grant the request for cancellation nonetheless. Among other things, being a good employer plays a role here.
- On July 1, any remaining days of annual leave from 2020 not yet taken by employees will expire, provided that you have given employees the opportunity to take these remaining days off work and timely informed them of the date on which they will expire. If you have failed to do so or you cannot provide any evidence as proof, the remaining days of annual leave from 2020 will instead expire 5 years after the year in which they were accrued (i.e. 2020) rather than on July 1, 2021. This means employees will still be able to take these days off work during the upcoming summer.
- In the event of increased activity and workload due to the coronavirus pandemic, you may ask employees to have any accrued extra-statutory days of annual leave cashed out instead. This means they opt to receive payment in place of days off work. However, this decision may not be taken unilaterally by the employer.
- An employee may want to go on vacation to an region with a high-level travel restriction, either a code orange (only necessary travel to this region) or code red (do not travel to this region) – the two highest travel restrictions imposed by the Dutch government. This means the employee is taking a huge risk and may be forced into quarantine upon returning home. More and more regions are given lower-level travel restrictions, but much is still uncertain. You can therefore draw up a travel policy (or elaborating a current policy) detailing the vacation scenarios for which an employee temporarily loses the right to receive salary. An example of such a scenario could thus be traveling to a region currently with a code orange or code red travel restriction. Make sure to ask a lawyer or expert what is legally possible here and stay up-to-date on any developments.