Member Article

Introduction

On 21 January 2021 a new royal decree was published in the Official Gazette which has temporarily extended occupational doctors' role in combating the COVID-19 pandemic in the workplace. Occupational doctors will be contact tracers in the workplace and in this context have been given the authority to:

• identify high-risk contacts in the company;
• issue a quarantine certificate for these workers; and
• refer certain workers to be tested or to carry out the test themselves if they consider 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 happen only when the occupational doctor decides so and only for well-defined categories of worker (eg, high-risk contacts or when the occupational doctor deems testing necessary to combat an imminent outbreak in the company or for workers who must make a business trip abroad for which a negative test is required).

Occupational doctors must prioritise their new COVID-19-related tasks and will therefore be allowed to temporarily postpone their usual health surveillance tasks and to create a priority arrangement for those usual tasks in consultation with the employer. In addition, some consultations may take place by video or telephone.

Occupational doctors' new tasks regarding COVID-19

The new tasks that occupational doctors have been temporarily entrusted with to combat COVID-19 in the workplace are as follows.

Tracking high-risk contacts within the company
Occupational doctors must identify the high-risk contacts of workers within the company in two specific situations – namely:

• when they have knowledge – via the contact tracing services or a worker or the employer – that a worker or temporary agency worker has tested positive for COVID-19 and was present in the workplace during the days prior to the testing or the occurrence of symptoms; or
• when they have knowledge of a potential risk of a COVID-19 outbreak within the workplace.
  
  

Providing quarantine certificates to workers whom they consider high-risk contacts
After identifying an infected worker's high-risk contacts, occupational doctors must issue a quarantine certificate to those workers. Subsequently, occupational doctors must inform the employer of such issuing and of the identity of the worker's high-risk contacts so that the employer can ensure that these workers do not come to the workplace during the period stated on their quarantine certificate.

If possible, workers who receive a quarantine certificate should perform their work from home (telework). However, if telework is impossible, workers are entitled to temporary unemployment allowances from the National Employment Office for the duration of the quarantine certificate.

Referring certain specific categories of worker for a COVID-19 test or conducting the test themselves
Occupational doctors can refer certain specific categories of worker to their personal doctor or to a test centre to conduct a COVID-19 test – namely:

• workers who the occupation doctor has identified 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 performing work in Belgium only on a temporary basis, provided that at least one of them has COVID-19 symptoms or has tested positive (within the so-called 'cluster management' framework);
• workers who must travel abroad for professional reasons and need a negative COVID-19 test to do so; and
• workers in certain specific circumstances as decided by the competent authority.
  
  

However, the royal decree now explicitly states that occupational doctors can also conduct a COVID-19 test themselves or have it conducted by nursing staff under their responsibility for the categories of worker above if they consider this to be more appropriate. For example, this can be the case if:

• testing capacity is under pressure and test centres cannot conduct the test or workers would have to wait too long for a test; or
• the risk of COVID-19 contagion is increased because workers must travel by public transport or live together in shared accommodation.
  
  

Occupational doctors can either make a referral for or conduct both polymerase chain reaction 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 workplace can be referred or tested by the occupational doctor; this cannot happen for workers who are working from home.

Impact on occupational doctors' usual tasks

During the COVID-19 pandemic, occupational doctors must prioritise these new COVID-19-related tasks over their other usual tasks regarding health surveillance.

Therefore, occupational doctors can temporarily postpone their usual tasks and create 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 (ie, not by teleconsultation).

Employers must immediately inform the workers concerned and the health and safety committee (or, in its absence, the trade union delegation or, in the latter's absence, the workers themselves) of the measures taken concerning health surveillance (eg, that certain health assessments are being postponed) and the reasons for doing so. Employers must also inform the workers and the workers' representatives of the importance of cooperating with the occupational doctor within the framework of contact tracing and the quarantine arrangements.

Occupational doctors can propose additional measures to employers

If a number of infections have been detected, the occupational doctor may signal to the employer that additional prevention measures (eg, hygiene, ventilation and the organisation of work) are required to limit the spread of COVID-19 or prevent outbreaks.

In such a case, the employer, together with the competent prevention adviser (internal or external service), must review the risk analysis and consult with the health and 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 mean for employers?

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.

Employers 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 they can decide so only for the specific worker categories listed above (eg, high-risk contacts or when testing is necessary to combat an imminent outbreak in the workplace or there are workers who must make a business trip abroad for which a negative test is required).

Can workers be obliged to take a test?
No, workers cannot be obliged to undergo a COVID-19 test as this affects their physical integrity.

What if workers refuse to take a test?
Since workers cannot be forced to take a test, they cannot be penalised by their employer for such a refusal.

However, if the occupational doctor considers that the worker in question is a high-risk contact, they 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 their 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 the workplace during the quarantine.

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

Can employers direct occupational doctors to conduct a test on a worker?
No, the occupational doctor decides independently if and when they will subject a worker to a COVID-19 test.

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

When a worker shows clear symptoms of illness (but has not yet tested positive), the employer must send them home and ask them to consult their personal doctor. If the worker refuses, 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, Section 2, point 2 of the Codex Wellbeing at Work). The occupational doctor then makes an independent assessment as to whether the worker should be subjected to a health assessment.

Checklist for employers

The new royal decree comes with several obligations for employers:

• If employers know that a worker is infected, they must report this fact to the occupational doctor as soon as possible.
• Employers must ensure compliance with the quarantine measures at work. Workers who have received a quarantine certificate cannot be admitted to the workplace.
• If the occupational doctor informs the employer that additional prevention measures are required, the employer must:
  • follow these measures;
  • contact the prevention adviser;
  • review the risk analysis; and
  • consult with the health and safety committee beforehand.
• Employers must inform the workers concerned and the health and safety committee about the measures taken regarding health assessments within the company (eg, the postponement of certain examinations or adjustments to the health surveillance) and the reason for such measures being taken.
• Pursuant to the EU General Data Protection Regulation (2016/679), employers cannot save their workers' test results or communicate such results to the tested workers' colleagues.