Member Article

A new Royal Decree published on 21 January 2021 in the Belgian Official Gazette has temporarily extended the occupational doctor's role in combatting the Covid-19 virus. The occupational doctor will be a contact tracer in the workplace and in this context has been given the authority to identify high-risk contacts in the company, to issue a quarantine certificate for these workers and to refer certain workers to be tested or to carry out the test him/herself if he/she considers such action to be more appropriate.

This does not mean that employers can now have their workers tested on a large scale and systematically. Testing can only happen when the occupational doctor decides so and only for well-defined categories of workers (such as high-risk contacts, or when the occupational doctor deems testing necessary to combat an imminent outbreak in the company, or for workers who have to make a business trip abroad for which a negative test is required, etc.).

The occupational doctor must give priority to his/her new 'Covid tasks' and will therefore be allowed to temporarily postpone the usual health surveillance tasks and to draw up a priority arrangement for those usual tasks in consultation with the employer. In addition, some consultations may take place by video or telephone.

 

THE OCCUPATIONAL DOCTOR’S NEW TASKS REGARDING COVID-19

The new tasks, which each occupational doctor has been temporarily entrusted with to combat Covid-19 in the workplace, are listed below.

1. TRACKING HIGH-RISK CONTACTS WITHIN THE COMPANY

The occupational doctor must identify the high-risk contacts of workers within the company in two specific situations, namely:

• when he/she has knowledge – via the contact tracing services, or a worker or the employer - of a worker or temporary agency worker testing positive for the Covid-19 virus, who was present in the company during the days prior to the testing or the occurrence of symptoms; or
• when he/she has knowledge of a potential risk of an outbreak of the Covid-19 virus within the company.
  
  

2. PROVIDING QUARANTINE CERTIFICATES TO WORKERS WHOM HE/SHE CONSIDERS TO BE HIGH-RISK CONTACTS

The occupational doctor must, after identifying the infected worker’s high-risk contacts, issue a quarantine certificate to those workers. Subsequently, he/she must inform the employer of such issuing and of the identity of the worker’s high-risk contacts so that the employer can see to it that these workers do not come to work during the period stated on their quarantine certificate.

As a reminder, if possible, the worker who received a quarantine certificate should perform his/her work from home (telework). However, if telework is not possible, then the worker is entitled to temporary unemployment allowances from the National Employment Office (“RVA”/“Onem”) for the duration of the quarantine certificate.

3. REFERRING CERTAIN SPECIFIC CATEGORIES OF WORKERS FOR A COVID-19 TEST OR CONDUCTING THE TEST HIM/HERSELF

The occupational doctor can refer certain specific categories of workers to their personal doctor or to a test centre to conduct a Covid-19 test. This is the case for:

• workers that have been identified by the occupational doctor as a high-risk contact;
• workers for whom the occupational doctor decides that a Covid-19 test is necessary to prevent a possible Covid-19 outbreak;
• workers who do not usually reside in Belgium and who are only performing work in Belgium on a temporary basis, provided that at least one of them has Covid-19 symptoms or has tested positive (within the framework of so-called ‘cluster management’);
• workers who must travel abroad for professional reasons and need a negative Covid-19 test to do so;
• workers in certain specific circumstances as decided by the competent authority.
  
  

However, the Royal Decree now explicitly states that the occupational doctor can also conduct a Covid-19 test him/herself, or have it conducted by nursing staff under the occupational doctor’s responsibility for the worker categories above, if he/she considers this to be ‘more appropriate’. This can, for instance, be the case if testing capacity is under pressure and so would not allow testing in test centres or would make workers wait too long, or when the risk of contagion of the virus is increased because workers have to travel by public transport or live together in shared accommodation.

The occupational doctor can either make a referral for or conduct both PCR tests and ‘fast Covid-19 tests’, depending on what is foreseen in the testing strategy of the competent authority.

Only workers who are physically present in the company can be referred or tested by the occupational doctor; this cannot happen for workers who are working from home.

IMPACT ON THE OCCUPATIONAL DOCTOR’S ‘USUAL’ TASKS

During the Covid-19 pandemic, the occupational doctor must give priority to these new Covid-19-related tasks over his/her other ‘ususal’ tasks regarding health surveillance.

The occupational doctor will therefore be allowed to temporarily postpone those usual tasks and draw up a priority arrangement for these tasks in consultation with the employer. In addition, some consultations may take place by video or telephone. 

Only preliminary health assessments of applicants must always be carried out as a priority over other health surveillance examinations and always by means of a physical examination of the worker (not by teleconsultation).

The employer must immediately inform the workers concerned and the Health & Safety Committee (or, in its absence, the trade union delegation, or, in the latter’s absence, then the workers themselves) of the measures taken concerning health surveillance (e.g. that certain health assessments are being postponed), as well as the reasons for doing so. The employer must also inform the workers(‘ representatives)  of the importance of cooperating with the occupational doctor within the framework of contact tracing, the quarantine arrangements, etc.

WHAT IF THE OCCUPATIONAL DOCTOR PROPOSES ADDITIONAL MEASURES TO THE EMPLOYER TO PREVENT THE FURTHER SPREAD OF COVID-19 IN THE WORKPLACE?

If a number of infections have been detected, then the occupational doctor may signal to the employer that additional prevention measures (e.g. hygiene, ventilation, the organisation of work) are required to limit the spread of the virus or prevent outbreaks.

In such a case, the employer, together with the competent prevention advisor (internal or external service), must review the risk analysis and consult with the Health & Safety Committee (or, in its absence, the trade union delegation or, in the latter’s absence, the workers themselves) as soon as possible and before taking the additional prevention measures.

WHAT DOES THIS ALL MEAN FOR THE EMPLOYER?

1. CAN EMPLOYERS NOW HAVE THEIR WORKERS TESTED ON A STRUCTURAL BASIS?

NO.

The Royal Decree clearly stipulates that it is by no means the intention that workers are to be tested systematically.

The employer cannot decide who should be tested and who should not be tested. The occupational doctor is the only person competent to make such a decision and he/she can only decide so for the specific worker categories listed above (e.g. high-risk contacts, or when testing is necessary to combat an imminent outbreak in the company, or there are workers who have to make a business trip abroad for which a negative test is required, etc.).

2. CAN WORKERS BE OBLIGED TO TAKE THE TEST?

NO.

A worker cannot be obliged to undergo a Covid-19 test as this affects his/her physical integrity.

3. WHAT IF A WORKER REFUSES TO TAKE THE TEST?

Since a worker cannot be forced to take a test, he/she cannot be sanctioned by the employer for such a refusal.

However, if the occupational doctor considers that the worker in question is a high-risk contact, then he/she could issue a quarantine certificate to this worker, even if the worker refuses to take a Covid-19-test.

The worker must then provide this certificate to the employer, and the employer must ensure that the worker complies with the rules on permitted work during the quarantine. In concrete terms, this means that the employer can prohibit the worker from coming to work during the quarantine.

If a worker refuses to be tested, then the occupational doctor can also report a possible infection to the Sciensano database; if the worker violates his/her quarantine obligation, then the occupational doctor can inform the regional infection control service of that fact.

4. CAN THE EMPLOYER ‘DIRECT’ THE OCCUPATIONAL DOCTOR TO CONDUCT A TEST ON A WORKER?

NO.

The occupational doctor decides independently if and when he/she will subject a worker to a Covid-19 test.

When the employer knows that a worker is infected, then the employer has to report this to the occupational doctor as soon as possible so that the latter can contact this worker and check which of this worker’s high-risk contacts must be tested.

When a worker shows clear symptoms of illness (but has not yet tested positive), the employer must send this worker home and ask him/her to consult his/her personal doctor. If the worker refuses, then the employer can notify the occupational doctor on the grounds that the physical condition of the worker undeniably increases the risks associated with the job (Article I.4-4, §2, 2° of the Codex Well-being at Work). The occupational doctor then makes an independent assessment as to whether this worker should be subjected to a health assessment.

CHECKLIST FOR EMPLOYERS

The new Royal Decree comes with a number of obligations for employers. We have listed the most important ones below:

• If the employer knows that a worker is infected, then the employer must report this fact to the occupational doctor as soon as possible.
• The employer must ensure compliance with the quarantine measures at work. Workers who have received a quarantine certificate may not be admitted to the workplace.
• If the occupational doctor informs the employer that additional prevention measures are required, then the employer must follow these measures up, contact the prevention advisor, review the risk analysis and consult with the Health & Safety Committee beforehand.
• The employer must inform the workers concerned and the Health & Safety Committee about the measures taken regarding health assessments within the company (e.g. the postponement of certain examinations, adjustments to the health surveillance) and the reason for such measures being taken.
• On the basis of the GDPR, employers must not save their workers’ test results or communicate those results to the tested workers’ colleagues.

 

ALTIUS’ employment team is available to provide further guidance regarding all well-being or Covid-19-related obligations.

 

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