Employer and Employee Rights during Covid 19 Pandemic: Belgium

The Covid-19 virus is spreading rapidly in Belgium, impacting all parts of everyday life, including the workplace. Therefore, Belgian employers are advised to take into consideration the following recommendations. Pursuant to Belgian law, an employer is responsible for the physical and psychological health and safety of the employees in the workplace and in this respect give instructions and take safety measures as reasonably can be expected from the employer.

What are the general principles an employer should or could apply?

Below we have set out the general principles which employers should and could apply. These principles will be aligned with the general principles of other countries and are permitted under Belgian law.

  • Implement a (verbal) policy to decrease face-to-face meetings and travel less, both professionally as privately
  • Assess the risks faced by employees & visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
  • Review the need for flexible working arrangements and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • Review policies governing business travel, holidays, sickness, caring for dependents and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • Review relevant insurance policies and guidance issued by their insurers
  • Update contact details for staff and management
  • Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19; or who report symptoms and may have CoVID-19

What if the employee refuses to come to the office?

Generally, employees cannot refuse to attend the workplace or perform work as required (e.g. by refusing to interact with asymptomatic colleagues who have recently returned from an affected area) due to fears of contamination, unless they can prove that the employer has noticeably created a situation or allowed such situation to occur, where there is a significant and real risk of contamination and in case of employer’s refusal to tackle such situation in accordance with mandatory health and safety law. If in employees’ reasonable opinion, there are certain concerns in relation to the coronavirus outbreak, it is recommended from an HR perspective to take into consideration those concerns and find a solution.

Can an employer forbid his employees to travel abroad for business?

To protect the good health of the employees in the first place, while also being aware of business consciousness, an employer can implement a policy that employees are in principle, not allowed to travel abroad for business when not strictly necessary.

Can an employer oblige employees to travel abroad for business?

While an employer may be entitled to require an employee to undertake business travel to an affected area, subject to an official ban by governmental exclusion orders or travel advice, employers must very carefully contemplate whether to go ahead with travel abroad requirements. In this respect, employers can rationally be expected to examine whether or not there are options to a planned business trip. The WHO recommends that employers carefully consider the individual employee’s circumstances, like age and known medical conditions.

Can an employer force an employee to work from home?

The employer and employee can mutually agree that the employee will temporarily work from home following his/her return from an affected area, in which case the employee will continue to be paid for the work he/she is doing while working from home.

If an employee is sent home, then what measures do employers have to take?

This will depend on the reason for being sent home. Employees who cannot attend work because they are actually infected with the novel coronavirus and who can provide the required medical certificate to prove this condition will be subject to the normal rules applying to incapacity at work, including the payment of the guaranteed salary by the employer during the first 30 days of sick leave for white-collar employees.

If the employee is quarantined, does the employer still have to pay the salary?

Employees who cannot come to work because of quarantine imposed by the authorities abroad or by the Belgian authorities after repatriation to Belgium must inform their employer as soon as possible to avoid any unjustified absence, in which case, as provided under question 7, normal rules on incapacity at work, will apply. The employer subsequently will be authorised to invoke force majeure in order to adopt temporary unemployment for such employees. The employees who refuse to come to work without a medical certificate to avoid the risk of becoming infected could be considered by their employer as absent without justification and thus not entitled to the payment of their salary during these days.

If on request of the employer, the employee should stay at home due to a suspicion of being infected, does the employer still have to pay the salary?

Yes, unless the employer requests and applies for temporary unemployment benefits due to force majeure for such employees.

If childcare services and/or schools are closed, is it allowed for the employee to stay home? If yes, is the employee still entitled to his/her salary?

Yes. As per the answers above. It is necessary to note that it is not recommended to have grandparents watch children as the elderly are among the groups vulnerable to coronavirus. However, you can leave your children to another family member, to a friend, to your children’s school, if open who will organise the reception or to an independent career. All solutions that do not involve vulnerable people are acceptable.

Can an employer force the employee to take holidays on short notice?

During the outbreak of coronavirus, unilaterally requiring employees to take their holiday is likely not possible.

Can an employer force the employees to cancel their holidays on short notice?

The employers can cancel annual leave that’s already been authorised, so long as the minimum required notice is given. However, there may be consequences of cancelling such since one way or another, it may lead to a loss of money for employee and may give discrimination claims.

Can an employer forbid his employees to travel abroad privately?

Employers may not prohibit their employees from undertaking private travel to affected areas. Employers may, of course, advise employees not to travel to affected areas. Due to current restrictions on travel, travelling limitations may be imposed by the state anyway.

Can the employer ask employees whether they have recently visited a risk area and if yes, what can the employer do?

Employers may ask an employee to voluntarily confirm whether he/she travelled to a risk area privately or professionally and/or came into contact with an infected individual. If the employee has visited a risk area, the employer can request the employee to visit a doctor and send the employee home. Insofar as possible, the employee can continue to work from home.

Can employers take the temperature of an employee?

Now, that the World Health Organisation has declared COVID-19 to be a pandemic, the temperature-testing employees may be permissible.

Can an employer force an employee to attend a hospital or other testing point for Covid 19?

Pursuant to judgement by the Belgian Supreme Court, an employer cannot force an employee to be tested for the illness. The employer can, in practice, recommend that the employee who exhibits symptoms to consult his own doctor and/or the occupational physician not jeopardise the health of his/her colleagues.