Original content provided by BDO Belgium
Now that the Coronavirus also appears in Belgium and the number of infections in our country is increasing, it is important that you, as an employer, are aware of your obligations and consequences for employment in your company. BDO provides an answer to a number of frequently asked questions from employers.
Employers have a duty of care towards their employees. They are obliged to take measures to protect the health and safety of their employees as much as possible and to offer them a safe workplace.
More specifically, employers must take measures to reduce the risk of a Coronavirus infection. The guidelines of the World Health Organization can provide useful guidance, such as making hand sanitizing gel available to workers, reminding workers to stay at home when they feel sick, disinfecting workplaces, etc.
The World Health Organization promotes, among other things, homeworking as a possible preventive measure, but it is recommended to have your employee's consent to this and to set out the modalities of the homeworking in writing (e.g. in an annex to the employment contract) if no company policy exists yet. A unilateral change of the place of work can in some cases be considered as an implicit dismissal. As an employer, you must of course provide the necessary tools (laptop, access to company data, ...) to make this possible.
No, you cannot just force your employees to stay at home. As an employer, you are obliged to provide work for your employees. As long as an employee cannot provide a certificate of incapacity for work, he is capable to work and you must provide work for him. Only in the event of a serious health risk, such a temporary measure can be considered. In that case, you must make it clear to your employee that this is an exceptional measure for the safety of the company and that it can in no way be considered as a termination of the employment contract.
You cannot force a worker to take annual holidays/overtime. This requires the employee's own consent.
If an employee shows serious indications of contamination, it is permitted to deny this employee his access to work in order to prevent the contamination of other employees. After all, as indicated above, the employer has a duty of care towards his employees. In that case, it is recommended to contact the prevention advisor/occupational physician as soon as possible.
An employee cannot just decide to stay at home and go into quarantine. If an employee does stay at home and is unable to produce a medical certificate, he is considered to be unlawfully absent and you do not have to pay his salary. Of course, you can mutually agree that the employee will work from home for a certain period of time in order to limit the risk of infection.
If an employee is compulsorily placed in quarantine and is no longer able to carry out his work, you can apply for temporary unemployment due to force majeure on the grounds of 'coronavirus' with the Rijksdienst Voor Arbeidsvoorziening (RVA). In that case, you do not have to pay a salary and the employee receives an allowance from the RVA.
Temporary unemployment due to force majeure on the basis of the corona virus is currently accepted by the RVA until 31 March 2020. If an employee is actually ill as a result of a contamination and can provide a medical certificate from a doctor stating that he is not allowed to come to work, he is entitled to guaranteed salary. After all, the normal rules regarding incapacity to work continue to apply.
You can certainly ask your employees to undergo a medical examination when required by company safety or to protect the other employees. This must be done by an internal company doctor and at the employer's expense.
Please note that the processing of employees' health data falls under the strict GDPR regulations. The processing can only be permitted under the exception of "public interest in the field of public health".
Also in this case you can invoke temporary unemployment due to force majeure. You do not have to pay wages and the employees concerned receive an allowance from the RVA. However, there must be concrete indications of a risk of infection and the ban must be imposed by higher authority. This is the case, for example, when an employee would be infected and the premises would have to close down in order to prevent further spread.
However, temporary unemployment due to force majeure is not permitted if it is a purely preventive measure imposed by the employer himself in order to avoid contamination in the company.
In this case, you can invoke temporary unemployment for your blue-collar workers for economic reasons.
In some cases, economic unemployment can also be invoked for white-collar workers.
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