The outbreak of Novel Coronavirus (COVID-19) has become a pandemic causing a public health emergency of global concern as declared by the World Health Organization on 11 March 2020. Also in Belgium, the virus is evolving rapidly (at time of writing on 26 March 2020 more than 6000 cases and more than 220 deaths).
Therefore Belgian authorities have decided to implement emergency measures on the evening of 12 March 2020. On 17 March 2020, the Belgian authorities have extended these emergency measures by taking even stricter measures to prevent the spread of the coronavirus. As a result, only shops whose activity is necessary for the protection of the vital interests of the nation and the needs of the population remain open (e.g. food stores, pharmacies, newsagents, petrol stations and suppliers of fuels). All other stores must remain closed. Other non-essential businesses can only remain open provided their employees telework or, if telework is not possible if social-distancing (min. 1.5metres between employees) can be respected at the work station. If no telework is possible and if the employer cannot guarantee the respect of the social distancing rules, the business must close, unless if is considered as one of the businesses listed as key (e.g., institutions of medical care, emergency services, companies in the food chain, etc). These new measures (Ministerial Decree (MD) of 18 March on urgent measures to prevent the spread of the coronavirus COVID – 19), apply since 18 March 2020 until 5 April 2020. These measures are reviewed and fine-tuned on a daily basis and are expected to be extended after this date.
Without unexpected twists and turns, the federal parliament will soon approve an Act that gives the federal government special power to take swift legislative action against coronavirus without having to wait for the green light from Parliament.
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.
What are employers’ obligations in respect of COVID-19?
At time of writing the mandatory obligations for employers in respect of COVID-19 derive from the announcement of the Belgian Federal Government of 12 March and 17 March 2020, effective until 5 April 2020:
- Where possible, telework is strongly recommended;
- For the employees who cannot telework, a social distancing of min. 1.5 metres between each person must be respected;
- If either of these options is not possible, businesses considered as "non-essential" in the Annex of the Covid-19 Ministerial Decree (e.g., institutions of medical care, emergency services, companies in the food chain, etc) must close. These measures are strongly advised for businesses considered as "essential" by said Ministerial Decree
- Access to grocery stores can only take place in accordance with the following modalities: maximum 1 customer per 10 square metres over a period of time of 30 minutes maximum;
- All bars, cafes and restaurants must remain closed;
- Shops and stores are closed, except for: food stores, including night shops, pet food stores, pharmacies, newsagents, petrol stations and fuel suppliers, hairdressers, who may receive only one customer at a time and this only by appointment;
- Sales or discount actions are forbidden;
- All recreational activities whatever their size or nature, with public or private character are cancelled (sports, cultural activities, folklore, etc.);
- Cancelling non-essential meetings, limiting the journeys on public transportation and allowing more flexible working hours is strongly recommended;
- Lessons and activities in kindergartens, primary and secondary schools will be suspended (Child care facilities, however, will be assured);
- Colleges and universities only operate through distance learning.
Violations of the above obligations can be sanctioned by penalties determined by article 187 of the Act of 15 May 2007 on civil security and/or a closure measure.
In addition, employers should ensure to take any necessary steps to protect their employees. All employers have health and safety obligations, which keep employees informed about health risks that may arise in carrying out their duties and ensure that working practices do not create undue risks to employees.
On 13 March, the Federal Ministry of Labour and Employment issued specific recommendations to employers to avoid the spread of the coronavirus. According to these guidelines, companies are advised to avoid gathering too many people in one same place as much as possible (until 3 April) e.g. by:
- postponing meetings or fostering the use of videoconferencing;
- temporarily postponing large events such as staff parties;
- ensuring that employees maintain sufficient interpersonal distance in the workplace;
- whenever possible, allowing flexible work hours or holidays so that fewer people are present at the same time in the same location (and on public transportation);
- avoiding organising training courses with large attendance; and
- observing the recommendations for employers issued by the World Health Organization.
The Federal Ministry of Healthcare also issued a number of non-binding health-related recommendations.
All these recommendations 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 a safe and secure work floor, whereas 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 contacts 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.
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.
- 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 risk 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).
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 company must not require employees to provide this information to third parties and consider carefully what, if any, further action to take if the employee refuses to do so. There is a risk if an employer requires employees to attend client sites which require employees to give personal information in order to access those sites. In this case, the risk would be that such personal information would not be given freely and, therefore, 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. So far, the Belgian Data Protection Authority remained silent in this regard. The position will need to be kept under review as the situation evolves and further guidance becomes available.
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 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. work at home or teleworking, use of other premises etc).
Infected employees will benefit from the same protection than any other Belgian-based employee 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 to obey to their employer orders. They may not be absent from work on their own initiative due to fear or abstract risk of infection.
Fit employees would only be entitled not to come to work if:
- this may actually present a risk to their health and safety e.g. if one of their colleagues is infected;
- they work in one of the abovementioned industries “cancelled” by the Belgian Federal Government until 5 April 2020 (e.g., bars and shops, see above);
- the authorities declare an employee’s place of work or residence from which they commute “in quarantine,” and it is therefore impossible for them to get to work. (To date, except for the municipality of Knokke, no area has been set under quarantine or “Lock Out”).
In any event, if generic reassurance doesn’t suffice and as far as possible, it is recommended to invite employees who refuse to attend work to work remotely. In extreme circumstances, such refusals may be treated as a disciplinary matter.
What are employers’ obligations where offices are partially or fully closed?
If this is practically possible and if adequate wordings are included in the concerned employees’ employment agreement (or in any addenda), certain employees could continue to work remotely. This measure is in principle mandatory for 'non-essential' businesses (see above) and strongly recommended for 'essential' businesses.
If the premises must partially or fully close because of COVID-19 (e.g., no material or clients, workplace infected or mandatory closure 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 capped to EUR 2,754.76). There are two types of temporary unemployment:
(i) Temporary unemployment for 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 is the case if the COVID-19 pandemic renders the performance of activities impossible and the company is forced to (partially) close. Examples are the shops, bars and restaurants in Belgium that are forced by State order to close. Other businesses not directly affected may call upon a force majeure event (e.g. suppliers of these shops). In 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: less clients and less demand following the COVID-19 outbreak 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.
Until 5 April 2020, the procedures for temporary unemployment for both force majeure events and economic reasons have been simplified and unified: employers simply have to inform their payroll agency which employees they put under unemployment (who 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).
If the force majeure event is acknowledged, no pay shall be due to the concerned employees who will benefit from temporary unemployment allowances from the Belgian unemployment authorities during the suspension due to force majeure.
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 26 March 2020