Belgium: COVID-19 Consequences for Employers and Employees
The COVID-19 virus can have several consequences for Belgian employers and employees. Below we give a short overview of different aspects to be taken into account.
In case the employer wants to take preventive measures to protect his employees against the coronavirus, the health & safety legislation applies. In this respect, the Codex on the Wellbeing at Work requires the involvement of the prevention advisor – occupational physician in a risk analysis concerning the employees’ risks of exposure to biological agents (like a virus). He can give advice on this matter, which the employer can choose whether to follow or not. Next, the employer also has to inform the Health and Safety Committee as to the measures taken.
An employer who wants to introduce a measure like health monitoring (e.g. systematically taking the temperature of the employees) should involve the Prevention advisor – occupational physician, as only a medical professional is allowed to perform medical acts. Furthermore, asking employees to fill in a health declaration form in order to see if they possibly present contamination risk is restricted by the GDPR, as data on health are seen as sensitive data and strict processing rules will apply. In general, such a processing would require the explicit (written consent) of the data subject and the mentioning of a specific purpose. Belgium laid down additional rules for the processing of sensitive data: e.g. the identification of the categories of persons who have access to the data and the requirement for these persons to be bound by a duty of professional confidentiality.
Together with the prevention-advisor occupational physician, companies could think of a broad scale of measures, ranging from the introduction of a strict regime of hand-hygiene at the workplace and the communication of guidelines to prevent contamination on the intranet, to more intrusive measures like health checks, e.g for companies with establishments in countries with a high number of contaminated persons (and whose employees have visited those countries or have been in contact with visitors from those countries) or whose employees come into contact with a high number of people. For more measures, see the website of the Belgian Government (below).
In any case, employers will have to take into consideration the prohibition on discrimination on the basis of health status if they take measures. If such measures result in a distinction between employees, the employer needs to see if the measure has a legitimate aim and is proportional.
If possible, taking into account the nature of the work, the employer could introduce telework for his employees in order to reduce the risk of contamination at work. Such a temporary situation would be qualified as occasional telework. Occasional telework is normally used for situations of force majeure, when, due to unforeseen circumstances and independent of his will, the employee is unable to carry out his work at the normal place of work. A quarantine could be seen as such a situation, even when self-imposed. Employer and employee can make individual agreements about the possible provision by the employer of the equipment and technical support needed for occasional teleworking (e.g. provision of a portable computer); the possible accessibility of the worker during occasional telework; any reimbursement by the employer of the costs associated with occasional telework (flat-rate allowance in the case of use of a personal computer). The company could also lay down these provisions in the internal work rules or in a collective bargaining agreement. The employee has no right to telework: in principle the employee has to ask the occasional telework in advance and the employer can refuse this.
Telework could also be a solution for employees in case the schools would close down and they do not find help to take care of their children. If the employer in such a situation would not allow telework, employees could also take leave because of urgent reasons. An employee has the right to 10 days of such leave per year, but unless provided otherwise by collective bargaining agreement, the employer does not have to pay the wage for this leave.
Not every company will have the opportunity to use telework due to the nature of its activities. As seen in China, production companies could be severely economically affected by the virus. If a virus outbreak takes place, workers might be forced to quarantine themselves or production plants will have to close down in order to prevent the further spread of the virus. Such an economic shock can be partly absorbed by the system of temporary unemployment. In this case, the employer must submit a file at the National Employment Office (RVA/ONEM) to prove the situation of force majeure: i.e. the fact that the consequences of the coronavirus render the company temporarily unable to employ his employees. The Belgian Minister of Work Nathalie Muylle has declared on 6 February 2020 that the Coronavirus can form a justified reason for temporary unemployment. In this case, the employer no longer needs to pay the wages of the employees and the National Employment Office will pay unemployment benefits to the employees.
Also when the employee is forced into quarantine on his holidays in another country, and this makes it impossible for him to work, it is possible to request temporary unemployment for this worker. This is a case of force majeure.
It becomes more difficult when the consequences of the virus do not make it impossible to employ the workers (due to quarantine), but the company is hit by the economic consequences, e.g. because the public avoids public places like hotels, restaurants, bars, cinemas, theatres or the production depends on supplies from heavily affected regions. These employers could submit a request for temporary unemployment due to lack of work, because of economic reasons. The procedure and conditions for this form of unemployment are stricter than for force majeure. However, the National Employment Office has stated that companies that have to stop their production because of a lack of supplies caused by corona can also request temporary unemployment based on force majeure. This is not the case for companies that experience a drop in customers.
Finally, the system of temporary unemployment is only applicable to the private sector. Therefore, the government will have to find an equitable solution in case a public company will be hit by a considerable outbreak of the virus amongst its workers.
(See website of the National Employment Office)
If an employee becomes ill because of a contamination of the corona virus, he should get checked by a doctor and the normal rules for absence because of illness will apply. The employer has to continue to pay the normal wage (during the first month of the absence). He will not be allowed to dismiss a contaminated employee. This would be manifestly unreasonable and a discrimination on the ground of state of health. In order to prevent absences of employees because of false and pretended cases of contamination, it is possible to send a control doctor to check the health status of the employee.
Author: Pieter Pecinovsky. Van Olmen & Wynant attorneys are available to assist you with these and other workplace issues. For more information, visit https://www.vow.be/
For more information please contact Joseph Granato, Communications Manager at L&E Global at firstname.lastname@example.org.