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.
Following encouraging figures showing a decrease of confirmed COVID-19 cases from the end of April 2020 till the beginning of July 2020, Belgian authorities gradually eased the emergency measures. However, as COVID-19 cases are currently increasing again, the federal government delayed phase 5 of the restrictions easing process and introduced amongst others the following new emergency measures:
- the obligation to wear face-masks is extended to markets, flea markets, funfairs, shopping streets, parts of public buildings accessible to the public, café and restaurants (except for people sitting at a table), as well as in any place with heavy frequentation (both private and public - these places will have to be clearly defined in each municipality by the local authorities). Face-masks were already mandatory in stations and public transportation;
- customers of restaurants and cafés will have to give their email address and telephone number to be informed in case of contamination (this information will have to be deleted after 14 days and cannot be used for other purposes); and
- from Wednesday 29 July and for at least 4 weeks, the social bubble of people people can see will be reduced to 5 people (excluding the members of the household and children under the age of 12).
Some provincial and regional authorities have decided to implement even stricter measures:
- Province of Antwerp: e.g. wearing a face mask is in principle mandatory when leaving home for everyone who is older than 12 years old, a curfew
(from 1.30am to 5am).
- Brussels-Capital-Region: e.g. wearing a face mask is in principle mandatory in all public places and publicly accessible private places for everyone who
is older than 12 years old.
The following lockout phase out measures remain applicable, subject to strict health & safety protocols (see below):
- B2B industries and shops remain open and work 'on site' is allowed;
- a (limited) reopening of bars, restaurants, cultural and sport activities;
- reopening of national borders for travel to and from the European Union;
- reopening of many infrastructures incl. swimming pools, wellness centres, theatres, cinemas, casinos, etc.. Nightclubs remain closed and mass events forbidden;
- one-off events taking place in the public space limited to 200 persons indoor or 400 persons outdoor are allowed upon specific authorisation of the local authorities based on an online tool (matrix); and
The health & safety measures to be complied with in the context of COVID-19 are as follows:
(I) Individual requirements:
- Hygiene measures remain essential;
- The rules regarding safety distance (only available in French and Dutch) continue to apply, except for people of the same household, for children under the age of 12 and for the 'social bubble'. Those who cannot respect safe distances must wear face masks;
- wearing masks or equivalent mouth and nose protection is mandatory in stations, on public transport, markets, flea markets, funfairs, shopping streets, parts of public buildings accessible to the public, café and restaurants (except for people sitting at a table), as well as in any place with lots of people;
- group meetings are limited to a maximum of 10 people, excluding children younger than 12 years old. This applies to all gatherings, regardless of whether they take place inside or outdoors (e.g. at home, a restaurant or work);
(II) Regulatory framework:
- B2B and B2C industries and services are allowed to open provided that they respect the rules of social distancing. Where this is not possible they must observe and implement a series of preventive health & safety measures defined in the following guides approved by the government:
- Generic guide for combatting the spread of COVID-19 at work (guide in English);
- Guide to the opening of businesses to prevent the spread of the COVID-19 virus (guide in English); and
- Guide for a safe restart of hospitality (guide in English).
These are complemented by guidelines at sectoral 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.
- Working from home is strongly recommended, wherever possible.
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 and e.g. reinstate a lockdown.
What are employers’ obligations in respect of COVID-19?
At the time of writing, the mandatory obligations for employers include amongst others:
- organising home working is strongly recommended for every job where this is possible. If employers face force majeure (e.g. site forced to close) or economic reasons (e.g. limited business needs) they can put employees on temporary unemployment for force majeure or economic reasons (further details below);
- where employees cannot work remotely or parties choose to return to the premises, social distancing requirements must be strictly respected (i.e. keeping minimum 1.5 metres distance between workers at all times). Where this is not possible employers must observe and implement appropriate preventive measures (see previous question);
- access to stores and shops can only take place over a period of time of 30 minutes maximum. Shoppers must stay alone or with a minor living under the same roof. Night shops must close after 10 p.m.;
- specific modalities apply when receiving customers in massage parlours, beauty salons, non-medical pedicure stores, nail salons, hairdressers, barbershops and tattoo and piercing salons (e.g. reception may only take place by appointment; hairdressers may receive more than one client per 10m2 if the workstations are separated with a plexiglass wall or an equivalent alternative, workstations must be at a distance of at least 1.5 metres from each other);
- Specific modalities apply when receiving customers in establishments belonging to hospitality (e.g. there must be 1.5 metres between tables and a maximum 10 people per table, waiters must wear masks and they can remain open until 1:00am at the latest);
- Specific modalities apply when receiving customers in shopping centres (e.g. the shopping centre must make it easier to maintain a distance of 1.5 metres by means of markings on the ground and/or signs, face-mask is mandatory).
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. Workers who feel that their employer is not complying with the measures can report it to the authorities responsible for monitoring compliance with social laws.
All these measures are being regularly updated.
Can employers request or require information from an employee about potential or actual exposure to the virus?
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 the 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 is 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.
- In Belgium, employers should be able to process such employee information by relying on Article 9(2)(b) GDPR on the basis of the health and safety duty referred to above.
- Belgian employers would need to show that the collection of employee information is necessary to protect the health, safety and welfare of its employees. They should also document their consideration of the risks to their employees and any alternatives they considered.
- Employers would need to have an appropriate policy document in place for such processing and the usual key principles and obligations (such as transparency, data minimisation and security requirements) will apply.
Employers may also face situations where a customer or client requests or requires travel or health information relating to their employees.
- Where this applies, the employer should, as a starting point, seek to provide generic reassurance to the client or customer.
- If this does not suffice, employers should consider whether there are grounds for the employer to provide certain information to the third party. Employers could also consider advising employees that they can provide information to third parties, if requested and if they are happy to do so.
- Unless there is a clear legal obligation for the employer to do so, employee consent is likely to be the only applicable legal basis for sharing such information with third parties. To be considered valid, consent must be given freely.
- The employer must not require employees to provide this information to third parties and should consider carefully what, if any, further action to take if the employee refuses to do so. If an employer requires employees to attend client sites which require employees to give personal information in order to access those sites there is a risk that the employee is not providing that personal information freely and, therefore, any 'consent' will not be valid.
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 Dutch and French version). The BDPA regularly updates its COVID-19 FAQ.
What should employers do if an employee is absent or infected?
As long as it is not 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 the 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 (GP) 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 abstract risk of infection.
Fit employees would only be entitled to not come to work if:
- attendance may actually present a danger to their health and safety, i.e. if the employer is unable to adequately protect them against the COVID-19;
- they work in one of the above mentioned industries “cancelled” by the Belgian Federal Government (e.g. as of time of writing (29 July 2020), night clubs);
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.
What are employers’ obligations where offices are partially or fully closed?
If it is practically possible and adequate wording is included in the concerned employees’ employment agreement (or in any addenda), certain employees could 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 of clients or suppliers of these shops). 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 less clients and/or less demand following the COVID-19 outbreak, which does not render the activities impossible but significantly decreases the work. In principle, 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 procedures for temporary unemployment for both force majeure events and economic reasons were simplified and unified originally until 19 April 2020. These simplification measures have been extended until 31 August 2020 in respect of temporary unemployment due to a force majeure event and for unemployment due to economic reasons.
During their operation, employers simply have to inform their payroll agency of any employees they put on unemployment. The payroll agency will file an online "social risk" declaration (i.e. ASR scenario 5) through the website of the National Office of Social Security www.socialsecurity.be.
Employers that still have economic difficulties due to COVID-19 after 31 August 2020 can enjoy the simplified procedures (see I & ii above) until 31 December 2020 if the following conditions are fulfilled:
(i) Temporary unemployment due to a force majeure event for companies/sectors that are particularly affected by the COVID-19 crisis:
a. The "sectors" particularly affected by the crisis have not yet been specified in a ministerial decree. However, they will be sectors whose economic activity and employment have decreased significantly as a result of the emergency measures taken to limit the spread of COVID-19.
b. The "companies" particularly affected by the crisis are employers who, during the second quarter of 2020, experience a number of days of temporary unemployment due to economic reasons and COVID-19 force majeure. The period of temporary unemployment must constitute at least 20% of the total number of days declared to the NSSO, excluding days that are declared on the DmfA declaration with codes 30 (unpaid authorised absence), 50 (sickness or accident), 51 (maternity protection and breastfeeding breaks) and 52 (paternity or birth leave, adoption leave and foster care leave).
(ii) Temporary unemployment for economic reasons:
a. For blue-collar workers, the execution of the employment contract can be suspended for up to eight weeks (instead of four weeks under the ordinary regime), after which the full-time working scheme must be resumed for a full working week. Reduced working time arrangements involving less than three working days per week may be introduced for a maximum of 18 weeks (instead of 13 weeks under the ordinary system), after which the full-time working scheme must be re-established for a full working week.
b. For white-collar workers, the execution of the employment contract may also be suspended (for up to 24 weeks in the year 2020). Further, a reduced working time scheme may also be introduced (for a total duration of up to 34 weeks in the year 2020), provided that the employer (i) demonstrates that it has experienced a substantial decrease of at least 10% in its sales or production in the quarter preceding the request for the application of the temporary unemployment measure (in comparison to the same quarter of 2019), (ii) offers the employees concerned two days of training per month, and (iii) is bound by a collective labour agreement or a business plan.
Where can employers and employees access local and national advice?
It is strongly advised to keep up to date with these recommendations, as they are quite detailed, and regularly updated.
Last reviewed 12 August 2020