Belgium: Choosing the Wrong Holiday Destination: Consequences for the Employment Relationship

Even in the midst of the COVID-19 pandemic, employees still have the right to take their annual holidays. However, the corona crisis makes the execution of this right more difficult than in previous years.

This article looks at the issue regarding the location of the holiday destination, if the employee intends to go on vacation in another country. Belgium only allows trips to several European countries. In general, non-essential trips to non-EU countries (with the exception of Switzerland, Iceland, Norway and the UK) are prohibited. Next, the government uses a colour code for holiday destinations:

• GREEN countries or regions can be visited without any difficulties.
• Visiting ORANGE countries or regions is discouraged, and, upon return, travellers are advised to get tested and/or self-quarantine for 14 days.
• Travel to / from RED countries or regions is strictly prohibited. Travellers to these countries are required to be tested and must immediately self-quarantine for 14 days upon return. Although not specifically listed, non-European countries (which are not on the green or orange list) are treated as red countries.

The overview of green, orange and red countries (and regions) can be found on the website of the Federal Public Service of Foreign Affairs. The list is continuously monitored and updated.

In principle, the holiday destination of an employee is a private matter, which makes it difficult for employers to ask their employees about where they intend to vacation. However, travelling to red zones can also have serious consequences for the employment relationship. Upon return, the employee will possibly have to self-quarantine for two weeks.

The Federal Public Service of Employment has stated that if the holiday destination is qualified as a red zone by the government at the time of the employee’s departure, the employee will bear the fault and consequences of his/her decision to disregard the prohibitions in place and travel to the restricted destination. Since the employee’s wrongdoing is the trigger for the (mandatory) quarantine upon return, the situation cannot be qualified as force majeure. This means that the employer cannot put this employee on temporary unemployment due to force majeure, which would give the employee a right to an allowance during the quarantine. Hence, when the employee’s role does not allow him to work from home, there are only two options left. First, the employee could take more vacation days (with the agreement of the employer) in which case the employee will receive holiday pay. Second, if the employee does not have enough vacation days left, the employer can suspend the employment contract during the quarantine period, which renders the execution of the contract impossible. The employee will not be able to work and the employer will not have to pay the employee’s salary, nor will the employee have a right to (unemployment) allowances.

Employers would also be allowed to send employees home if they present themselves at the workplace upon returning from a red zone. Of course, the above is not applicable when the holiday destination turns into a red zone while the employee is already on holiday at that location.

Therefore, in addition to the public health concerns, it is in the best interests of both parties, for the employee to avoid travelling to a red zone on holiday. Finally, employers are encouraged to clearly communicate to their employees the possible consequences of travelling to red zones.

For more information on these articles or any other issues involving labour and employment matters in Belgium, please contact Chris Van Olmen (Partner) of Van Olmen & Wynant at chris.van.olmen@vow.be or visit www.vow.be.