EU guidelines on the exercise of the free movement of workers during COVID-19 crisis

By Pieter De Koster

04-2020

The European Commission just published guidelines on the restrictions of the free movement principles in the context of the current COVID-19 crisis.

  • Based on overriding public security and public health grounds, many Member States have introduced unprecedented measures including checks at internal borders, an unseen phenomenon since the 1960s for many countries. The European Commission has now, by way of a communication, set forth certain guidelines that outline which restrictions would meet the test of necessity and proportionality and would have objective and non-discriminatory criteria as their basis [1].

  • The guidelines mainly concern frontier workers and posted workers where cross-border travel is an essential condition for exercising their professional activity. For those frontier and posted workers who engage in so-called critical occupations, the Commission urges the Member States to ensure unhindered cross-border movement, by establishing burden-free and fast procedures to ensure smooth passage (by way of reserving dedicated lanes on the road or issuing specific stickers for recognition). Critical occupations for these purposes include all health professionals, personal care workers, scientists and workers in health-related, pharmaceutical and medical devices industries (including those active in the supply chain for such industries), information and communications technology and engineering professionals and technicians, food manufacturing and processing and related trades and maintenance workers (and machine operators), transport workers, and public services (firefighters, police etc.).

  • For frontier and posted workers, health screening must be carried out under the same conditions as for nationals (in the host country) exercising the same occupation. Health screening can be carried out at the border, and coordination between the relevant Member States should achieve efficiency (e.g. ensure a single screening at the border), and effectiveness (by using electronic devices of temperature measurement).

  • Those frontier and posted workers, who are not occupied in critical occupations, should be allowed border crossings to their workplace if work in the sector concerned is still allowed in the host country.

  • The Communication specifically addresses frontier workers who currently are simultaneously active in two Member States and are subject to the social security system of the host/employment member state (because the activity in their country of residence is lower than 25%)[2]. If current COVID-19 related measures (of home work, short-term work or confinement) increases their home country professional activity beyond 25% of their time, the change in applicable social security law can be avoided – and continuity in coverage under the host member state’s social security regime secured – by applying for an exception with the home country administration [3].

  • For seasonal workers, the same rules to those applicable to frontier and posted workers in critical occupations apply to the extent that they perform critical jobs in agriculture (harvesting, planting or tending). Equally, border crossing should be allowed to the extent that work in the relevant sector is still allowed in the host country.

[1] Communication from the Commission, ‘Guidelines concerning the exercise of the free movement of workers during COVID-19 outbreak’, OJ, C 102, I, 30 March 2020, p 12 – 14.

[2] Regulation 883/2004 of 29 April 2004 on the coordination of social security systems

[3] Article 16 of the Regulation