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 the encouraging figures showing a decrease of confirmed COVID-19 cases, Belgian authorities are gradually easing the emergency measures.
On 25 April 2020, the government announced a gradual lifting of the lockdown restrictions, with three main phases (Phase 1a as of 4 May, Phase 1b as of 11 May, Phase 2 as of 18 May and Phase 3 as of 8 June). Phases 1 and 2 reopened B2B industries and shops and allowed work 'on site'. On 3 June the government also approved the transition to Phase 3 of the phase-out plan, allowing a (limited) reopening of bars, restaurants, cultural and sport activities from 8 June 2020 onwards (subject to strict health & safety protocols). Since 15 June 2020, Belgium also reopened its borders for travel to and from the European Union.
As COVID-19 cases in Belgium continue to decrease, the government outlined a Phase 4 in the phasing out plan, to start on 1 July 2020. Phase 4 of the plan mainly consists of the following:
- reopening of many establishments, including swimming pools, wellness centres, theatres, cinemas and casinos (subject to compliance with specific health protocols that will soon be published). Nightclubs remain closed and mass events forbidden;
- one-off events taking place in the public space limited to 200 persons indoors or 400 persons outdoors (limits to be doubled as from August) are allowed subject to strict health protocols and upon specific authorisation of the local authorities based on an online tool (matrix); and
- aside from in stations and public transportation where it is mandatory, the wearing of face masks remains strongly recommended in shops and public places.
The above relaxations show a radical change in approach compared to the rules previously in force. We note that from 1 July onwards, the general rule is that individuals have freedom to undertake all activities, and those that are not allowed form the exceptions (see (i) and (ii) below). Any activities that are still banned are either not allowed because they involve close contact between people or mass gatherings, or because no sector CBA's have been defined yet.
The new government's approach consists of the following two levels:
(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 'extended social bubble' (i.e. the 15 people with whom you are allowed to have closer contact on a weekly basis). Those who cannot respect safe distances must wear face masks;
- wearing of masks or equivalent mouth and nose protection is mandatory on public transport;
- group meetings are limited to a maximum of 15 people, including children. 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:
1. Generic guide for combatting the spread of COVID-19 at work (guide in English);
2. Guide to the opening of businesses to prevent the spread of the COVID-19 virus (guide in English); and
3. 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 recommended, where possible.
Note that the above measures can be amended depending on the state of spread of COVID-19.
What are employers’ obligations in respect of COVID-19?
At the time of writing, the mandatory obligations for employers include:
- for employers allowed to reopen pursuant the gradual lockdown phase out, organizing home working is strongly recommended where possible. Employers who cannot reopen due to the but whose employees cannot work from home must put employees on temporary unemployment for force majeure or economic reasons (further details below);
- where premises are allowed to reopen and 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;
- 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);
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. 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 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, 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 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. The Belgian Data Protection Authority has confirmed the above position (available in Dutch and French here), and 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 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:
- 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; or
- they work in one of the abovementioned industries “cancelled” by the Belgian Federal Government (e.g. as of time of writing (10 June 2020), cinemas, amusement parks, spa centres, swimming pools);
In any event, if generic reassurance does not suffice and as far as possible, it is recommended to 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 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 strongly recommended for all companies where possible.
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 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. amusement parks). Other companies not directly affected may also call upon a force majeure event (e.g. shops who have seen a decrease in clients or the suppliers of such 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 30 June 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 here.
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 25 June 2020