Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Belgium has so far been spared from coronavirus (COVID-19) outbreaks. Now that many people have returned from holidays (February 22 – March 1), however, this might change. This article provides practical guidance on employer’s rights and obligations should coronavirus strike Belgium.
General health and safety requirements
Employers are obliged to take preventive measures to protect their employees against health and safety issues in the workplace.
In this respect, Belgian law requires employers to perform a risk analysis of employees’ risks of exposure to biological agents (such as viruses). The risk analysis must include necessary and appropriate measures to minimize the risks of exposure to the coronavirus (e.g., a regime of hand-hygiene at the workplace, guidelines to prevent contamination, a business travel ban to affected countries, etc.).
State-paid temporary unemployment
If the coronavirus creates situations making it impossible for the workforce or part of it to actually work, the employer could consider applying for temporary unemployment due to unforeseen circumstances. If this application is successful, the employee receives an allowance from the national unemployment office (RVA/ONEM) during the days of inactivity.
To apply for temporary unemployment, the employer must submit an electronic application to the national unemployment office indicating “coronavirus” as reason for the unforeseen circumstance. In addition, it must also submit a written application to recognize the unforeseen event (i.e., the event not linked to the employer’s own actions) with a detailed explanation proving that the unemployment was caused by unforeseen event, in this case, the coronavirus. This step is in addition to the usual formal requirements.
The unemployment regime applies only to employees who are in theory fit to work—for example, employees otherwise capable of working are quarantined at the instruction of the authorities, or employers depend on suppliers located in affected regions. The mere fact that employees are returning from affected regions or have allegedly been in contact with people who have been in affected regions, will not suffice for a successful application. In addition, employers taking preventive measures limiting the likelihood their employees will become infected by the coronavirus will not be awarded the temporary unemployment due to unforeseen circumstances for the employees affected by this measure (e.g., employees asked to temporarily not come to work).
Employees who are unable to work due to illness are entitled to receive their normal salary for a period up to, in principle, the first month of illness, at the expense of the employer and cannot enter into the regime of state-paid temporary unemployment.
The national unemployment office announced it will accept coronavirus-based applications through March 31, 2020. It might revisit its position depending on future developments.
Outside the specific situation of state-paid temporary unemployment linked to the coronavirus, employers affected by a decline in their business could also be eligible for temporary unemployment for general economic reasons, if they meet the conditions thereto.
Obligation to pay salary?
If the national unemployment office recognizes a temporary unemployment situation is due to unforeseen circumstances, the employer will be released generally from its obligation to pay salary.
As noted earlier, however, employees who are actually ill are entitled to their normal salary for a period up to the first month of illness, at the employer’s expense.
In situations not recognized by the national unemployment office as temporary unemployment, it will be much more difficult for the employer to validly suspend its obligation to pay salary.
Employer’s ability to impose legitimate instructions
Employees also have an important role to play in the health and safety of the workplace. They must cooperate to enable the employer to meet its obligations.
It follows that employees must abide by all legitimate and reasonable instructions given by the employer to preserve health and safety at work, such as, for example, requiring employees to work from home or simply refusing access to certain at-risk employees. However, depending on the circumstances and the type and duration of the measures imposed by the employer, there might be a risk of committing constructive dismissal entitling the employee to compensation in lieu of notice. Unilaterally requiring employees to take their holiday is likely not possible, for example.
As a rule, employers cannot instruct employees to provide information in writing on their health status. After all, such instruction requires a processing of sensitive data and is strictly regulated by the General Data Protection Regulation (GDPR).
Right for employees to work from home?
The law allows employees to ask for occasional telework in case of unforeseen circumstances or personal reasons. Occasional telework is defined as a situation where employees work occasionally (as opposed to on a regular basis) from home or from another adequate location other than their usual place of work. This right is not absolute, since the employer has a right to refuse the telework request.
Just as some specific situations could exempt employers from their duties to provide work (not necessarily their duty to pay salary, as noted above), some situations might entitle employees to temporarily suspend their obligations to come to the office, even in situations where employers would not necessarily want to approve occasional telework as a matter of principle.
Should coronavirus strike Belgium, the above practical guidance on employer’s rights and obligations might help to minimize the health risks at the workplace and adverse impact on the employer’s business and financial position.