Covid-19 coronavirus: HR-related questions for employers in Belgium

We will address some of the most frequently asked questions below across five themes:

1. General employer obligations
2. Dealing with employees who are ill or have recently travelled to affected areas
3. Dealing with concerns from other employees
4. Business and private travel
5. Employment related impact on the business of the novel coronavirus outbreak

1. General employer obligations

What are the general health and safety obligations of the employer?

As a general principle under Belgian health and safety regulations, an employer must take all necessary measures to promote and safeguard the well-being of its employees in the performance of their work.

In practice, it will be for each individual employer (in consultation with its health and safety services and, if applicable, employee representatives) to assess which measures it should reasonably take in view of addressing the current coronavirus outbreak. In this regard, measures that an employer could consider putting in place, are those identified in the advices issued by the World Health Organisation and the Belgian Federal Public Service Employment, Labour and Social Dialogue, which in particular include:

• Regularly disinfect objects (eg key board and door handles).
• Distribute dispensers with hand sanitizer, remind employees to wash hands via posters and other means of communication, etc.
• Provide tissue paper, sealed trash cans, etc.
• Advise employees to seek travel advice from the national government before they leave on a business trip.
• Promote employees working from home.

Is the employer required to involve its employee representative bodies?

Whether or not the employer is required to involve its employee representative bodies (ie its works council, committee for prevention and protection at work and/or trade union delegation) will largely depend on the measures the employer plans to take in the context of the novel coronavirus outbreak.

Aside from a general obligation to involve the committee for prevention and protection at work (or, in its absence, the trade union delegation) in relation to health and safety matters, the employer may, depending on the nature of envisaged measures, be under a specific obligation to inform and/or consult its employee representative bodies. Examples where such specific information and/or consultations obligations may arise are where the employer (plans to) introduce a broader use of telework, make an application for temporary economic unemployment, reduce work volume (eg cancellation of flights by airlines), etc.

2. Dealing with employees who are ill or have recently travelled to affected areas

What if an employee cannot come to work because they are placed in quarantine?

Where the employee is placed in mandatory quarantine ordered by a government, this will constitute a force majeure event that suspends the employment agreement.

What if an employee cannot come to work because their flight home has been cancelled?

Depending on the exact circumstances (eg actions taken by the employee to overcome a flight cancellation), the fact that an employee is stuck abroad because their flight has been cancelled may also qualify as a force majeure event.

What does suspension of the employment agreement due to force majeure mean?

Where the employment contract is suspended due to force majeure, the obligations of both parties are suspended as long as the force majeure persists. Relative to the essential obligations of an employment relationship, this means that the employee will not be required to work and the employer will not be required to pay salary.

Can the employee claim benefits to compensate loss of income where he/she is unable to attend work due to a mandatory quarantine or a flight cancellation?

The Belgian National Employment Office has indicated on its website that if an employee cannot return to Belgium (for example, due to a flight ban) or is mandatorily quarantined in or outside of Belgium, the employee may be placed on temporary unemployment due to force majeure.

In this regard, it should be noted that the mere fact that an employee has recently returned from an affected area is in itself not sufficient to claim temporary unemployment due to force majeure. Thus, the fact that an employer takes "preventive" measures (eg asking employees who have travelled to an affected area but who do not exhibit any symptoms to self-isolate for a period of time), is insufficient as a basis to apply for temporary unemployment due to force majeure.

It is important to note that employees cannot themselves apply to receive temporary unemployment benefits. If the employer wishes to use this mechanism, it is up to the employer to make an application. In particular, the employer must submit an electronic declaration to the unemployment office as quickly as possible and submit a written request for recognition of force majeure with a detailed explanation that the unemployment was caused by a force majeure event.

In respect of the current coronavirus outbreak, the Belgian National Employment Office has indicated that it will in a first phase consider applications for temporary unemployment due to force majeure for the period up until 31 March 2020.

Where the National Employment Office approves the employer’s application (whereby the approval will by definition for a fixed term subject to potential renewal), relevant employees will be entitled to temporary unemployment benefits (paid through state social security) of 65% of the his/her normal salary and capped at 1,790.59 EUR (gross).

An employee returns from an affected area. Can the employer have the employee tested or have him/her undergo a health assessment?

Pursuant to the case law of the Belgian Supreme Court, an employer cannot as a principle require an employee to be tested for illness.

In practice, the employer can of course however recommend that the employee consults his own doctor and/or the occupational physician. While an employee can normally not be forced to consult a doctor, it may in the current context be reasonably required from an employee who exhibits symptoms to not jeopardize the health of his/her colleagues and thus consult a doctor when asked by the employer.

An employee returns from an affected area and does not exhibit relevant coronavirus symptoms. Can the employer prohibit that employee from attending the workplace?

As a principle, the employer cannot refuse the employee access to the workplace and/or require him/her not to work.

However, whilst the employer may thus in principle not unilaterally impose the employee staying at home, the parties may of course agree that the employee will stay at home for a certain period of time after returning from an affected area. This will require the employee’s consent and will, in practice (in view to obtain consent), often require that the employer continues to pay the employee’s salary during the period that the employee cannot attend the workplace.

An employee returns from an affected area and does not exhibit coronavirus symptoms. Can the employer insist that the employee must work from home?

Similarly, an employer may as a general principle not unilaterally require an employee to work from home. However, as has been indicated by the Belgian Federal Public Service Employment, Labour and Social Dialogue in the context of the novel coronavirus outbreak, employer and employee may agree that the employee will temporarily work from home following his/her return from an affected area.

Where the employer has no such arrangements in place, this type of working from home arrangement can be implemented within the context of “occasional telework”.

An employee returns from an affected area and is unable to work due to illness. What must the employer do?

If an employee returns from an affected area and is unable to work due to illness (whether due to infection with the novel coronavirus or otherwise), the normal rules on incapacity for work will apply.

In most circumstances, the employer will then have to pay its white-collar employees guaranteed wage during the first month of incapacity due to illness. For blue-collar employees, guaranteed wage payable by the employer is degressive, ie employers only have to pay full guaranteed wage during the first 7 days of incapacity and only part of normal salary during the rest of the first month.

After this 1 month’s period (or after 7 days for blue-collar employees), the employee must claim benefits under the social security scheme.

3. Dealing with concerns from other employees

An employee does not want to come to work for fear of contamination?

As a general rule, employees cannot refuse to attend the workplace or perform work as required (eg by refusing to interact with asymptomatic colleagues who have recently return from an affected area) due to fears of contamination.

Only exceptionally where they can show that the employer has manifestly created a situation (or allowed such situation to persist) where there is a significant and real risk of contamination, and provided that the employer refuses to address such situation in accordance with mandatory health and safety law, may such employees potentially be able to invoke the exception of contractual non-performance (exceptio non adimpleti contractus) and refuse to work as long as such situation is not appropriately addressed.

Of course, where employees voice certain concerns in relation to the novel coronavirus outbreak, it would be recommended from an HR perspective to acknowledge those concerns and reasonably try to find a solution for them.

4 .Business and private travel

Can an employer require its employees to travel to affected areas on business?

While an employer may technically be entitled to require an employee to undertake business travel to an affected area, provided that this is not barred by governmental exclusion orders or travel advice, employers must very carefully consider whether or not to make such requirement. In this respect, employers can reasonably be expected to investigate whether or not there are alternatives to a planned business trip.

In making this assessment, the WHO also recommends that employers carefully consider the individual employee’s circumstances, eg age and known medical conditions.

Can an employer prohibit its employees from traveling to affected areas?

An employer may indeed forbid its employees from making business trips to affected areas under their employment agreements.

As a general rule, employers may however not prohibit their employees from undertaking private travel to affected areas. Employers may, of course, advise employees not to travel to affected areas.

5. Employment related impact on the business of the novel coronavirus outbreak

The employer cannot provide work due to the new coronavirus. What should it do?

The Belgian National Employment Office makes a distinction between two situations.

If, due to impact of the new coronavirus outbreak, an employer is affected by a drop in clients and cannot provide work, the employer may rely on the temporary unemployment due to economic reasons mechanism. For white-collar employees, this is only possible if the employer has already met the preliminary conditions for using temporary unemployment due to economic reasons. The measure must in that case be provided for in an industry-wide collective bargaining agreement, a company-wide collective bargaining agreement or an approved business plan. In addition, the company must be in difficulty due to either a 10% decrease in return, production or orders, or a degree of temporary unemployment of at least 10%. Companies that do not meet these conditions, but are recognized by the Belgian Minister of Work as a company in difficulty, are also eligible.

For other situations, the employer may potentially be able to use the temporary unemployment due to force majeure mechanism (see above). As an example, the Belgian National Employment Office refers to Belgian companies that cannot provide work due to their dependence on suppliers from affected regions.

Other actions?

Depending on how the situation evolves, other measures may potentially have to be taken. In this respect, employers may already consider to prepare further contingency plans to address potential further impact of the coronavirus outbreak on their organisation and operation.

Useful links for further information

• Belgian Federal Public Service Employment, Labour and Social Dialogue
• Belgian Federal Public Service Health, Food Chain Safety and Environment
• European Centre for Disease Prevention and Control
• WHO
• Center for Disease Control (US): Prevention and treatment and guidance business response
• Allen & Overy Italy publication on the Coronavirus
• Allen & Overy Luxembourg publication on the Coronavirus
• Allen & Overy the Netherlands publication on the Coronavirus