1. Do employers have to respect health and safety measures when having their employees return to work and if so, which ones?
To the extent possible, the so-called ‘social distancing’, i.e. two people keeping to a distance of at least 1.5 metres, has to be respected in the workplace. However, if this distance is not (always) possible, then other prevention measures that provide at least an equivalent level of protection must be taken, such as:
- Organisational measures: the spreading of working hours and breaks, flexible hours, working in shifts, etc.
- Collective protective equipment: placing partitions, tensioning ribbons, applying markings on the ground, etc.
- Personal protective equipment: facemasks, but also protective clothing such as an apron, gloves, etc.
Explicit reference is made to the Ministry of Employment’s ‘generic guide’ (NL here/ FR here) to preventing the spread of Covid-19 at work that provides a general framework with particular prevention measures. For certain sectors, this ‘generic guide’ is completed with more specific sector guidelines describing how the companies in that specific sector can safely resume work.
Specific generic guides have been drawn up for the restart of shops and the catering industry (bars & restaurants).
The Employment Ministry has also drawn up a ‘prevention checklist Covid-19’ based on the generic guide and the wellbeing legislation, which is a useful tool for self-monitoring by employers.
2. Is the employer required to inform and consult staff and/or employee representatives on the choice and implementation of these health and safety measures?
The prevention measures must be determined at the company level taking into account the social dialogue. The employer must consult with the Health and Safety Committee (‘CPPW’) or, in its absence, the Trade Union Delegation or, if there are no consultative bodies, then with the employees directly, about which preventive measures are needed and how they will be implemented. In addition, a risk analysis and an action plan must be drawn up together with the internal and/or external prevention service.
The employer must inform the workers in due time about the prevention measures in force and provide them with appropriate training. Also, third parties must be informed about the applicable prevention measures.
3. Are there any fines or penalties for non-compliance with the health and safety measures?
If an employer does not take the appropriate health and safety measures, then a criminal fine ranging from EUR 800 to EUR 8,000 or an administrative fine ranging from EUR 400 to EUR 4,000 can be imposed for non-compliance with the obligations regarding the employees’ wellbeing at work. In the event that this non-compliance leads to health damage or a work accident, then imprisonment ranging from 6 months to 3 years and/or a criminal fine ranging from EUR 4,800 to EUR 48,000 or an administrative fine ranging from EUR 2,500 to EUR 25,000 can be imposed. In addition, an operating ban or professional ban can be imposed.
Any employee who believes that his/her employer has not taken the necessary prevention measures can report this situation to the social inspection services (Wellbeing at Work) or can report it on the website of the Social Fraud Disclosure Office (Meldpunt sociale fraude/Point de contact fraude sociale).
4. Can the employer oblige (some of) its employees who are currently teleworking to return to the company premises?
It is the employer’s right to decide who comes back to the workplace and when. Indeed, since 4 May 2020, telework is only “recommended” (although it should stay ‘the norm’) and the employer can decide that all (or some) employees should return to the workplace.
However, as telework is one of the prevention measures, the employer will have to consult with the employees (representatives) about this recall of employees from telework and will have to justify its decision (which will be harder for functions that can still fully and perfectly be exercised from home).
A possible rotation could be put in place so that employees partly resume working at the workplace and partly continue to telework, which ensures that not all employees are present at the work premises at the same time.
In principle, the employees cannot refuse such a request to come back to the work premises (unless the employer has not taken any appropriate prevention measures and the employee could claim that his/her work post presents an immediate and serious danger to his/her health, meaning that the risk of being contaminated is almost certain to arise from his/her work post).
5. Can an employee refuse to return to the company premises because he/she has to take care of his/her children who cannot go to school?
An employee cannot refuse to return to the workplace and will have to find a solution for the care of his/her child(ren).
However, to help parents with the combination of work and child care, the government has created a ‘corona’ parental leave scheme.
To be eligible for this corona parental leave scheme, the employee must have at least one dependent child that has not yet reached the age of 12. Working time can be reduced by 1/5 (only for full-time employees) or by 1/2 (only for full-time employees or employees working at least 75%). Therefore, taking full-time corona parental leave is not possible. This parental leave can only be taken with the employer’s permission.
The employee will receive an allowance from the Unemployment Office (RVA/Onem) on top of his/her reduced salary. This allowance is 25% higher than the allowance employees receive in the case of a ‘classic’ parental leave.
Alternatively, the employee could take up holiday days or days of leave for compelling reasons (a maximum of 10 days per year).
6. Are there any obligations on employers to reimburse the out-of-pocket expenses of those employees continuing to telework?
The employer has to pay any internet and communication costs. In addition, if the employee has to use his/her own equipment, he/she is entitled to a reimbursement of the costs regarding the installation and the use of this equipment. The National Social Security Office allows employers to pay their employees a net lump-sum expense allowance that is capped to cover these costs (e.g. 20 EUR/month for the use of the employee’s private computer and 20 EUR/month for the private internet).
The employer is not obliged to refund any other costs such as heating, electricity, small office equipment, etc., but employers who wish to do so can grant their employees a lump-sum compensation of EUR 129.48 per month, which is accepted by the tax authorities and the NSSO, free from social security contributions and taxes.
7. Are employers obliged to provide their employees with facemasks and/or other protective personal equipment (PPE) if they must return to the work place?
There is no general obligation for employers to provide their employees with facemasks or other PPE.
However, in situations where the social distancing of 1.5 metres cannot be respected, then protective personal equipment such as facemasks can be a suitable prevention measure, but always in combination with other prevention measures. The generic guide gives priority to organisational measures (e.g. postponing work) and collective prevention measures (e.g. plexiglass partitions) and considers PPE to be a last resort.
If employees are required to make professional displacements by public transport, then the employer will be obliged to provide facemasks as the wearing of facemasks is compulsory on public transport.
8. Can the employer still leave some of its employees in temporary unemployment when its business starts up again and, if so, can the employer choose which employees?
The employer may decide to start up only gradually and to leave certain employees in temporary unemployment.
It is the employer who is responsible for the work organisation and who decides which employees will remain temporarily unemployed and which employees will return to work with the sole restriction that the employer may not discriminate. The legislation does not provide any procedure or right for the employee to oppose the employer's decision.
9. Can the employer terminate the employment contract of those employees who are placed in ‘corona’ temporary unemployment?
An employer can terminate the employment contract of any employee placed in ‘corona’ temporary unemployment. However, a bill has very recently been adopted providing for a suspension of the notice period during all periods of temporary unemployment on the basis of the simplified ‘corona’ procedure. Yet, contrary to what was initially proposed and following the Council of State’s advice, the Act does not have retroactive effect.
Specifically, this means the following for notice periods served by the employer:
- For notice periods served after 22 June 2020 (i.e. the law’s publication date in the Belgian Official Gazette): full suspension of the notice period during all periods of temporary unemployment under the 'corona' regime.
- For notice periods served before 1 March 2020: no suspension of the notice period; it continue(s)(d) to run.
- For notice periods served after 1 March 2020 that are still ongoing: they will only be suspended by periods of corona temporary unemployment as from 22 June 2020 (i.e. as from the date of the law's publication in the Official Gazette).
- For the part of the notice period that has already expired: no suspension (and therefore no retroactivity).
- For the part of the notice period that still runs after publication of the new law in the Official Gazette: suspension.
10. Can the employer conduct temperature checks on staff before they enter the company premises?
The issue of whether an employer is allowed to check its employees’ temperature is controversial and has been much debated.
The Employment Ministry has recently tightened up its position indicating that, although as a general principle it is prohibited, such temperature checks are permitted during the Covid-19 crisis period provided that:
- they are carried out within a strict framework that is set out in the working rules (by analogy with the procedure of CBA n° 100 on the conduct of alcohol and drug tests). Inclusion in the working rules requires the Works Council’s approval or, in its absence, a 15-day consultation with the employees.
- The employer consults with the Health & Safety Committee (or, in its absence, the trade union delegation, or in its absence, the employees themselves).
- The checks are carried out by the occupational physician (or by the employees themselves).
- Regarding the right to conduct temperature checks, the Employment Ministry has indicated that such temperature checks can only happen on a voluntary basis. If an employee refuses to have his/her temperature checked,then the employer cannot, in principle, refuse him/her access to the work premises.
However, the Belgian Data Protection Authority (DPA) is taking a very strict view about this matter. It considers that, in the present Covid-19 context, it would currently not be allowed for an employer to test the temperature of its workers if such temperature-taking leads to the recording (processing) of personal data relating to health (the measurement result or its consequences, e.g. absence from work) and thus to the GDPR’s application. The DPA argues that Belgian employers are, at the moment, not in a position to be able to rely on one of the exceptions provided for by the GDPR and that are needed to allow such processing.