Last updated: 11 June 2021
The outbreak of Novel Coronavirus (COVID-19) is a worldwide pandemic and the World Health Organization has declared that this is a public health emergency of international concern. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
As COVID-19 cases are currently decreasing, the government is gradually relaxing the coronavirus rules. As of 9 June 2021 people are allowed to invite 4 people at once to their home indoors or up to 50 people outdoors; bars and restaurants can again receive people indoors (allowed until 10-pm); and bars' and restaurants' terraces may remain open until 11.30 p.m. COVID-19 measures in the culture, sport and events sector were also relaxed.
The health & safety measures to be complied with in the context of COVID-19 are as follows:
(I) Individual requirements:
(II) Regulatory framework:
These are complemented by guidelines and protocols at a sectoral (e.g. in the metal and mobility, distribution, repair and maintenance sector) and/or company level, and/or other appropriate measures to ensure and provide an equivalent level of protection. Collective measures always take priority over individual measures.
Save for some exceptions since 9 June 2021, employers must register the following elements monthly, using a specific online platform made available by the National Social Security Office:
Note that the above measures can be amended depending on the state of spread of COVID-19 and that the municipalities have the power to go beyond this federal legal framework.
At the time of writing, the mandatory obligations for employers include, amongst others:
Workers who feel that their employer is not complying with these measures can report it to the authorities responsible for monitoring compliance with social laws. The social inspectorate services can also monitor the application of the corona health & safety regulations (Ministerial Decree of 30 June 2020) through pre-announced inspections at their own initiative. Violations of the above obligations may be sanctioned by penalties outlined under Article 187 of the Act of 15 May 2007 on civil security and/or a closure measure and article 238 of the Social Criminal Code.
All these measures are being regularly updated.
Belgian employers are bound by a general duty to ensure their employees’ health and safety and to provide safe and secure work premises, whilst employees are bound by a general obligation to comply with reasonable instructions or requests issued by their employer. Based on the above, in the current situation, employers may instruct employees to notify management about any trips made or planned to infected areas or any contact with confirmed cases of infection.
Any recording or storage of this information should be carried out in line with the applicable privacy requirements, including the EU General Data Protection Regulation (“GDPR”) and its implementing laws. Information about employees’ health (such as whether individuals have been diagnosed with the virus or are suffering from any symptoms) is sensitive personal data. Accordingly, additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective, and employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country. We set out below the position in Belgium, but also have available to you our cross-jurisdictional Q&A on important HR data-related questions available here. The chart includes guidance on steps employer can or must take when re-opening the workplace (including temperature checks) in respect of employees, visitors and agency workers.
Employers may also face situations where a customer or client requests or requires travel or health information relating to their employees.
Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. The Belgian Data Protection Authority (hereafter 'BDPA') has confirmed the above position (only available in Dutch and French version). The BDPA regularly updates its COVID-19 FAQs.
Unless it is proved that the employee is incapacitated for work or that the employee has to respect quarantine by means of a medical certificate from an attending physician or the occupational physician, the employer cannot, in principle, refuse the employee access to the workplace.
In view of the employer's obligation to ensure, as a prudent and reasonable employer, that its work is carried out under proper conditions with regard to the safety and health of the employee, the employer will of course be able to take certain measures within the legal limits. For example, the employer may, in consultation with the employee, decide to temporarily organise the work differently (e.g. through remote working, use of other premises etc.).
Infected employees will benefit from the same protection as all other Belgian-based employees on sick leave (i.e. paid leave paid by the employer for the first 30 calendar days of sick leave, followed by replacement allowances from the concerned employees’ health insurance fund). It’s worth noting that, specifically for COVID-19, no physical consultations are required. General practitioners (GPs) are allowed to issue medical certificates after phone consultations provided that the GP has an existing health file of the patient and has treated the patient in the past.
Refusal to work or attend work
Employees are generally obliged to perform work and obey orders from their employer. Employees may not be absent from work on their own initiative due to fear or the abstract risk of infection.
Fit employees would only be entitled to not come to work if:
In any event, if generic reassurance does not suffice, it is recommended that employers invite employees who refuse to attend work to work remotely. In extreme circumstances and if not based on any valid grounds / fears, such refusals may be treated as a disciplinary matter.
If it is practically possible and adequate wording is included in the concerned employees’ employment agreement (or in any addenda), certain employees may continue to work remotely. This measure is strongly recommended for all companies where possible.
If the premises must partially or fully close because of COVID-19 (e.g. due to a lack of materials or clients, the workplace is infected or mandatory closure has been ordered by the Belgian authorities), the employer can put its employee(s) on temporary unemployment. During this period, employees will receive unemployment benefits paid by the Belgian state and will in principle no longer receive any salary from the employer.
Note that these unemployment benefits only cover a part of the lost salary and are capped at 70% of monthly pay (up to EUR 2,754.76). There are two types of temporary unemployment:
(i) Temporary unemployment due to a force majeure event (i.e. a sudden and unforeseeable event occurred involuntarily and without any fault on the part of either party rendering the performance of the employment agreement temporarily totally impossible): This will apply if the COVID-19 pandemic renders the performance of activities impossible and the company is forced to (partially) close. Examples include companies that are forced by State order to close (e.g. night clubs). Other companies not directly affected may also call upon a force majeure event (e.g. shops with a decrease in clients or suppliers). In the case of a force majeure event, affected employees will receive a supplement of EUR 5.63 per unworked day on top of the unemployment benefits, at the expense of the National Employment Office.
(ii) Temporary unemployment for economic reasons: This may apply if the company has fewer clients and/or less demand following the COVID-19 outbreak, which does not render the activities impossible but significantly decreases the work provided that the preliminary conditions set out in Article 77/1 of the Act on Employment Contracts are met (general scheme is again applicable since 1-01-2021). The conditions for unemployment for economic reasons are stricter and the application procedure is more burdensome in comparison with temporary unemployment for force majeure.
The simplified procedure for temporary unemployment for force majeure events was extended until 30 June 2021 (new extensions are possible). From 1 October 2020 to 30 September 2021, all temporary unemployment resulting from COVID-19 can be declared as ‘temporary unemployment due to corona force majeure’, even if it is strictly speaking economic unemployment and if it is still possible to work some days per week.
During their operation, employers simply had to inform their payroll agency of any employees they put on 'temporary unemployment due to corona force majeure'. The payroll agency would then file an online "social risk" declaration (i.e. ASR scenario 5) through the website of the National Office of Social Security www.socialsecurity.be.
It is strongly advised to keep up to date with these recommendations, as they are quite detailed and regularly updated.