As working from home becomes more and more common, there are also employees who want to work remotely from a country other than where the company is located or as a digital nomad without a fixed workplace. What do Dutch employers have to keep in mind when employees want to work from home abroad?
In 2023, working from home has become rather common. In times of COVID-19, many employees have started working from home. Working from home can even be done while staying abroad. For example, an employee may want to work from home abroad because of personal circumstances such as an illness of the employee himself or family members, or a wedding abroad, as well as to spend the winter in a sunny country.
However, cross-border working from home can have unexpected consequences. Do employees need a permit if they want to work from abroad? Or conversely, do employers need a permit to allow someone to work in another country? Will the home-working country become the new working country? And in which country do social security contributions have to be paid? These are all examples of legal dilemmas employers face when employees want to work from home abroad.
If you have an employee who wants to work from home abroad, you have to keep in mind that you may need to apply for a work permit for this employee.
First, of course, employees must have a residence permit for the country where they want to work from home. If employees do not have the nationality of the home-working country, they may need to apply for a residence permit. If employees are nationals of an EU/EER member state or Switzerland, they do not need a residence permit to stay in the other member states.
Under the principle of free movement of services, nationals of EU/EER member states and Switzerland can work in other member states. However, if employees wish to work from home in a country outside the EU/EER and Switzerland, it must be considered beforehand whether a work permit is required for that country in addition to a right of residence.
Do employees who are not nationals of the Netherlands or another EU/EER member state want to work in the Netherlands again after working from home? In this event, you may need to reapply for or renew a residence or work permit.
Working from home abroad may change the law applicable to an employment contract. In principle, employer and employee are free to state in the employment contract which law will apply, also referred to as the choice of law.
If an employee is going to work abroad temporarily, in principle there will be no change regarding the applicable employment law. What is meant by temporary needs to be considered on a case-by-case basis. For example, different rules may apply to digital nomads working consecutively in different countries than to an employee working only in one country.
If employees start working from abroad on a structural basis, the place from which the employees commonly perform their work, “the country of habitual employment”, changes. Despite the choice of law made in the employment contract, based on European legislation, the employer may not deviate from mandatory provisions of the country of habitual employment to the extent that they are more favourable than the chosen law. Such mandatory law regulations may also apply to countries outside the EU.
When working from home abroad, the country in which an employee is socially insured may change. If you employ an employee who wants to work from home abroad, the duration of the remote work is important. If an employee starts working from home abroad temporarily, he or she will, in principle, remain insured in the Netherlands. To this end, the employee can apply for an A1 certificate. This certificate proves that the social security contributions are paid in the Netherlands. This certificate is valid in EU/EER member states and treaty countries.
Based on European legislation, employees are, in principle, socially insured in the country where they work. If you employ employees who habitually work in the Netherlands but live in another EU/EER member state and these employees are going to work from home for 25% or more on a structural basis, they are compulsorily insured in the country of residence. This may result in the employer having to register in the employee’s country of residence to pay social security contributions there.
As many employees started working from home in a country other than their usual country of work due to the Covid pandemic, a temporary regulation has been introduced. If employees work more than 25% from home in a country other than their usual country of work, this does not affect where the employee is socially insured. This arrangement expires on 30 June 2023, after that the regular European rules will apply as explained above.
Since many employees are still working from home even after the coronavirus crisis, a framework arrangement has been made specifically for remote home working. This exception rule allows employees to work from home for up to 50% of the time from a country other than their usual country of work without changes to their social security status. This new arrangement will come into force between signatory member states on 1 July 2023. For employees who want to be covered by this exception rule, you as an employer can apply for an A1 certificate based on the framework arrangement as soon as possible. Applications can be submitted from 1 July 2023.
If you employ an employee who wishes to work from home temporarily in a country that is no EU/EER member state, the employee’s social security position is determined by social security treaties that have been concluded, or if there are none, on the basis of the national social security legislation of the Netherlands and the country where the employee is going to work temporarily. Due to the concurrence of social security systems, the employer may have to pay social security contributions in more than one country.
Employers have a duty of care to their employees. This legal duty of care for the employee’s health and safety does also apply if the employee travels abroad to work from home. This means that the employer must ensure the best possible working conditions in the employee’s home working environment.
Furthermore, if an employee is going to work abroad for longer than one month, the employer is obliged under Dutch law to provide the employee with a statement containing information about the following:
So there are more difficulties to working from home abroad than appears at first sight. We therefore recommend employers and employees map out in advance the possible consequences of employees working abroad and whether steps/measures need have to be taken to make working from home possible.
Do you have employees who wish to work from home abroad or work remotely, and do you want to know what the consequences are and which measures you have to take beforehand? We will be happy to give you advice. If necessary, for that, we can call upon our colleagues from the PrimerusTM network, “The World’s Finest Law Firms”. Please contact us, also for other questions about employment law and dismissal or if you need legal assistance in a dispute with personnel:
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