In March 2020, the first lockdown in the Netherlands was announced. Among others, the hospitality industry, schools and daycares were closed. Already in the first few months of this lockdown, tens of thousands of corona infections were detected. The pressure on healthcare rose enormously and workers from across the healthcare sector had to work hard to treat people with the corona virus. Large numbers of healthcare workers contracted the Covid-19 virus, including Long Covid, themselves as a result. Unions FNV and CNV have been campaigning for these healthcare workers since 2020.
Financial settlement for care workers
The FNV and CNV unions are deeply concerned about the situation of workers in the Netherlands who are struggling with Long Covid complaints and who have been, or are at risk of being, in dire financial concerns as a result. Accordingly, the unions have repeatedly drawn the State’s attention to 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 compensate this group was already sent to the State in April 2020.
After several meetings with the State, FNV and CNV expected the State to quickly come up with a new care arrangement for these workers. However, this did not happen. On 18 August 2022, the unions issued an ultimatum with a deadline of 9 September 2022 to get clarity on whether there will be a settlement. The State initially did not comply. In response, the unions sent a notice of default (legal summons) to the State. The unions demand that the State provides a real and concrete prospect of a settlement by 16 September 2022 that, according to the unions, adequately addresses the financial problems of these workers and which can be realised in the foreseeable future.
The Council of State and the State
The State responded to the legal summons, saying it wanted to wait for the State Council’s advice first. On 5 December 2022, the Council of State advised reasonably positive.
According to the Council of State, before answering the question 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 healthcare, the first question to be answered is whether the employer failed to fulfil their duty of care as employer. If so, this may lead to liability of the employer. Any special liability of the government only comes into play, for example, if the government has relied on healthcare workers to continue to provide care despite all the uncertainties about the health risks posed by the then-new virus from a more substantial interest, namely public health.”
However, the Council of State subsequently acknowledges that there could be grounds for a settlement. For example, there could also be liability. In addition, compensation for suffering could be framed as a ‘natural obligation’:
“The Council recognises that there may be grounds for making a provision in this case. It is plausible that in several sectors employees have been called upon to keep essential tasks afloat, despite the risks involved. This applies in particular to healthcare (…)”
In view of the mentioned, to arrive at a settlement, the Council believes that an “unobligatory concession” is not appropriate, but making a settlement in fulfilment of a natural obligation is reasonable.
FNV and CNV request the Minister for Long-Term Care and Sport to act on the advice of the Council of State. On 16 December 2022, a parliamentary letter from the minister appeared. In this letter, the minister effectively closes the door on a financial settlement as envisioned by the unions. The minister indicates that the unions should come to a settlement together with employers and employees. If the unions are successful in creating this arrangement, the State would then want to make a capped contribution for a maximum of one year:
“The government 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 enter into discussions with employers’ and employees’ organisations on such a collective arrangement of social partners in the short term. If employers and contractors – taking into account the delineation below and the other points of interest of the Council – come to an arrangement, for instance by means of a fund to be further set up, the Cabinet is willing 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 the care sector have lost their jobs due to the consequences of Long Covid and are therefore outside the collective agreement.
What does PILP-NJCM do?
Important documents: Summons (in Dutch) | Pleading notes (in Dutch) | Ruling (in Dutch)
PILP is acting as lawyer for the FNV in the summary proceedings over a long covid arrangement for healthcare employees. 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 case and an overview of frequently asked questions, can be found here.
On Wednesday 8 March 2023, the judge ruled that the unions were inadmissible, but also insisted on clarity in the short term. Read more here.
On 8 March 2023, the judge ruled in the summary proceedings on a Long Covid arrangement for healthcare workers that the unions are inadmissible but also insisted on clarity in the short term.
On Friday 17 February 2023 at noon, the hearing took place at the Court of The Hague. Rad along with the pleading notes of the lawyers.
On 17 January 2023, the summons on behalf of FNV are filed.
On 16 December 2022, a parliamentary letter from the minister was published. In this letter, the minister effectively closes the door on a financial settlement as envisioned by the unions.
The State responds to the summons and says it wants to wait for the State Council’s advice first. On 5 December 2022, the Council of State advises.
On 9 September, the unions’ lawyers send a notice of default (legal summons) to the State. The unions demand that by 16 September 2022 at the latest, the State offers a real and concrete prospect of a settlement that, according to the unions, adequately addresses the financial problems of these workers and can be realised in the foreseeable future.
On 18 August 2022, the unions set an ultimatum with the deadline of 9 September 2022. By this date, the unions want clarity on whether there will be a settlement. The state initially does not comply.
In April 2020, the unions already make an initial request to the State to offer financial compensation to care workers with Covid-19.
In March 2020, the first lockdown is announced in the Netherlands. Restaurants, schools and daycares, among others, will be closed down.