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:
- 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;
- Everyone, with a few exceptions (e.g. children up to and of 12 years old, persons living under the same roof among each other and people within the same 'social bubble'), is obliged to cover the mouth and the nose with a face mask when it is impossible, to guarantee compliance with the rules of social distancing;
- Home visits are restricted to persons per household inside and 50 persons outside (in ‘social bubbles’ of 4 persons) and gatherings in public areas are limited to 10 people.
(II) Regulatory framework:
- Bars and restaurants are open. They can continue to operate via deliveries and/or take away ("click & collect");
- Non-essential shops are open subject to compliance with strict health and safety measures for the prevention of COVID-19 infections;
- Teleworking is mandatory in all organisations, associations and services for all staff members unless this is impossible due to the nature of the position, the continuity of the management of the company, its activities, or its services. 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 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:
- the number of employees employed by the company. If the company has several business units, this should be stated for each business unit; and
- the number of employees employed by the company who carry out a function that cannot be organized via telework. If the company has several business units, this number should be specified for each business unit.
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.
What are employers’ obligations in respect of COVID-19?
At the time of writing, the mandatory obligations for employers include, amongst others:
- Teleworking is the rule in all organisations, associations and services for all staff members unless this is impossible due to the nature of the position, the continuity of the management of the company, its activities, or its services.
- Since 9 June 2021 employers can organise return-to-office time for their employees subject to strict conditions (e.g. by agreement between the employer and the employee, limited to a maximum of one working day per week per person, and a maximum of 20% of the employees required to telework may be present at the same time per day);
- Although legally disputable, it is safer for an employer to issue a certificate (or any other document) to all non-teleworking staff members evidencing the necessity of their presence at the workplace.
- If employers face force majeure (e.g. the site is forced to close) or economic difficulty (e.g. limited business needs) they can put employees on temporary unemployment for force majeure or economic reasons (further details below).
- In any event the social distancing requirements must always be strictly respected (i.e. keeping minimum 1.5 metres distance between workers). Where this is not possible employers must observe and implement appropriate preventive measures (see previous question).).
- 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:
- the number of employees employed by the company. If the company has several business units, this should be stated for each business unit; and
- the number of employees employed by the company who carry out a function that cannot be organised via telework. If the company has several business units, this number should be specified for each business unit.
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.
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 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.
- 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 share such information with third parties, employee consent is likely to be the only applicable legal basis for doing so. Consent must be given freely in order to be considered valid.
- 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 available in Dutch and French version). The BDPA regularly updates its COVID-19 FAQs.
What should employers do if an employee is absent or infected?
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:
- attendance may actually present a danger to their health and safety, i.e. if the employer is unable to adequately protect them against COVID-19; or
- they work in one of the abovementioned industries “cancelled” by the Belgian Federal Government (e.g. as of the time of writing, 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 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.
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.