The unions FNV and CNV are very concerned about the situation of workers in the Netherlands who are struggling with Long Covid complaints and who have been or are in danger of being in great financial difficulty as a result. As a result, the unions have pointed out to the State on several occasions the problems of care workers who have contracted Long Covid. FNV and CNV have pointed out to the State several times the acute problems of these employees and the State’s liability for (part of) these problems. A first request to financially accommodate this group was already sent to the State in April 2020.
After holding several talks with the State, FNV and CNV expected the State to quickly come up with a new care arrangement for these employees. However, this did not happen. On Aug. 18, 2022, the unions issued an ultimatum with a date of Sept. 9, 2022, to get clarity on whether there would be a settlement. The state initially did not comply. In response, the unions sent a demand letter to the State. In this letter, the unions demanded that the State offer a real and concrete prospect of a settlement by September 16, 2022 at the latest, which, according to the unions, adequately addresses the financial problems of these workers and can be realized in the foreseeable future. Read the news release on the summons letter by FNV and CNV here.
The Council of State and the State
The State responded to the summons and indicated that it wanted to wait for the State Council’s advice first. On December 5, 2022, the Council of State advised reasonably positively.
According to the Council of State, before answering the question of whether the State should come up with a care arrangement, it should first be examined whether the employers of care employees with Long Covid have fulfilled the duty of care:
“For the question of liability for damages resulting from Long Covid in health care, the question must first be answered as to whether the employer/principal failed to fulfill their duty of care as employer/principal described above. If so, this may lead to liability of the employer/principal. Any special liability of the government will only come into play, for example, if the government has relied on healthcare personnel to continue to provide care despite all the uncertainties about the health risks posed by the then-new virus from a more weighty interest, namely public health.”
However, the Council of State subsequently recognized that there could be grounds for regulation. For example, there could also be liability. In addition, compensation for suffering could be framed as a “natural obligation.
“The Division recognizes that in this case there may be grounds for provision. It is plausible that in several sectors employees have been called upon to keep essential tasks afloat, despite the risks taken in doing so. This applies in particular to healthcare (…)”
In view of the mentioned to arrive at a provision, the Division believes that an “unobligatory concession” is not appropriate, but that making a provision in fulfillment of a natural commitment is reasonable. It recommends that this be made explicit in the regulation and its name.
FNV and CNV requested the Minister for Long-Term Care and Sport to act on the advice of the Council of State. On December 16, 2022, a Parliamentary letter from the Minister appeared. In this letter, the minister effectively closed the door on a financial arrangement as envisioned by the unions. The minister indicated that the unions would have to come to an arrangement together with employers and employees. To that arrangement, the State would then want to make a capped contribution for a maximum of one year:
“The Cabinet considers it important to maintain as much as possible the division of roles between employers/clients and employees/contractors. Therefore, in line with the information, the Cabinet will soon enter into discussions with employers’ and employees’ organizations about such a collective arrangement of social partners. If employers and employees – taking into account the delineation below and the other points of interest of the Section – come to an arrangement, for example by means of a fund to be further set up, then the Cabinet is prepared to make a capped contribution to this in 2023, in addition to the substantial contribution of employers, taking into account relevant laws and regulations.”
The unions disagree with the decision. It is not up to them and the employers to reach a settlement. A settlement from the state is particularly important now – in the situation where many people in healthcare have lost their jobs due to the effects of Long Covid and are therefore outside the collective bargaining agreement. The unions therefore initiated summary proceedings in January 2023. PILP is acting as FNV’s attorney in the summary proceedings. The summons was prepared in cooperation with Mr. M. Kingma of Höcker Advocaten and Mr. P. Leermakers of BrandMR, who are acting as lawyers for the CNV.
More information about the summary proceedings and an overview of frequently asked questions can be found here.
On Wednesday, March 8, 2023, the preliminary injunction judge ruled in a summary judgment that the unions were inadmissible, but also urged short-term clarity.
