With the exit from lockdown in full swing, many companies are recalling their staff to the workplace. This article answers 10 FAQs that employers, business managers and HR specialists must consider during employees' return to work.

FAQs

Must employers respect health and safety measures on their employees' return to work and, if so, which ones?
Yes, to the extent possible, social distancing (ie, maintaining a distance between people of at least 1.5 metres) must be respected in the workplace. However, if this is not always possible, other prevention measures that provide at least an equivalent level of protection must be taken, such as:

• organisational measures (eg, staggered working hours and breaks, flexible hours and shift work);
• collective protective equipment (eg, partitions and ground markings throughout the workplace); and
• personal protective equipment (PPE) (eg, facemasks, aprons and gloves).
  
  

Employers should refer to the Employment Ministry's generic guide(1) on preventing the spread of COVID-19 at work, which provides a general framework and prevention measures. For certain sectors, this generic guide is completed with more specific sector guidelines describing how the companies in that specific sector can safely resume work.

Specific guides to help the retail and catering industries (eg, bars and restaurants) return to work are also available.

Further, the Employment Ministry has created a COVID-19 prevention checklist based on its generic guide and the wellbeing legislation, which is a useful tool for employers.

Must employers consult staff or employee representatives on their choice and implementation of health and safety measures?
Yes, prevention measures must be determined at the company level and consider the social dialogue. Employers must consult their health and safety committee, their trade union delegation (in the absence of such a committee) or the employees themselves (in the absence of consultative bodies) on which preventive measures are needed and how they will be implemented. In addition, a risk analysis and an action plan must be developed in conjunction with the internal or external prevention service.

Employers must inform employees in due time about the prevention measures in force and provide them with appropriate training. Third parties must also be informed about the applicable prevention measures.

Do fines or penalties for non-compliance with health and safety measures exist?
Yes, if employers fail to take appropriate health and safety measures, a criminal fine ranging from €800 to €8,000 or an administrative fine ranging from €400 to €4,000 can be imposed for non-compliance with their obligations regarding employees' wellbeing at work. If such non-compliance results in damage to health or a workplace accident, this may result in:

• six months' to three years' imprisonment;
• a criminal fine ranging from €4,800 to €48,000; or
• an administrative fine ranging from €2,500 to €25,000.
  
  

In addition, an operational or professional ban can be imposed.

Any employee who believes that their employer has failed to take the necessary prevention measures can report this situation to the social inspection services (Wellbeing at Work) or on the Social Fraud Disclosure Office's website.(2)

Can employers make employees who are working remotely return to the workplace?
Yes, employers decide who comes back to the workplace and when. Since 4 May 2020, remote work is only 'recommended' (although it should stay the norm) and employers can decide that all (or some) employees should return to the workplace.

However, as remote work is a prevention measure against COVID-19, employers must consult employees (or their representatives) about recalling employees from remote work and justify their decision (which will be harder for jobs that can be fully exercised from home).

Employers could introduce a rotation system, whereby employees partly resume work at the workplace and partly continue to work remotely. This would ensure that not all employees are present at the workplace at the same time.

In principle, employees cannot refuse a request to return to the workplace, unless their employer has taken no appropriate prevention measures and the employees can claim that their workplace presents an immediate and serious risk to their health (ie, the risk of contamination is almost certain to arise from the workplace).

Can employees refuse to return to the workplace because they must care for children who cannot go to school?
No, employees cannot refuse to return to the workplace and must find a childcare solution.

However, to help parents combine work and childcare, the government has created a COVID-19 parental leave scheme.

To be eligible for this COVID-19 parental leave scheme, employees must have at least one dependent child under the age of 12. Employees' working time can be reduced by 20% (for full-time employees) or 50% (for full-time employees or employees who work at least 75% of full-time hours). Therefore, taking full-time COVID-19 parental leave is impossible, except for single parents living alone and parents of a disabled child. Such parental leave can be taken only with the employer's permission.

Employees will receive an allowance from the Unemployment Office on top of their reduced salary. This allowance is 25% higher than the allowance that employees receive through classic parental leave (for single parents living alone and parents of a disabled child, the allowance is 50% higher).

Alternatively, employees can use holiday days or days of leave for compelling reasons (a maximum of 10 days per year).

Must employers reimburse employees' out-of-pocket expenses if they continue to work remotely?
Yes, employers must pay any internet and communication costs. In addition, if employees must use their own equipment, they can be reimbursed for the costs of installing and using it. The National Social Security Office (NSSO) allows employers to pay their employees a net lump-sum expense allowance that is capped to cover these costs (eg, €20 per month for the employee's use of their private computer and €20 per month for their use of their private internet connection).

Employers need not refund any other costs (eg, heating, electricity and small office equipment), but those that wish to do so can grant their employees lump-sum compensation of €129.48 per month, which is accepted by the tax authorities and the NSSO and is free from social security contributions and taxes.

Must employers provide their employees with facemasks or PPE if they are required to return to the workplace?
No, employers need not provide their employees with facemasks or PPE.

However, where the social distancing of 1.5 metres cannot be respected, PPE such as facemasks can be a suitable prevention measure, but always in combination with other prevention measures. The Employment Ministry's generic guide prioritises organisational measures (eg, postponing work) and collective prevention measures (eg, plexiglass partitions) and considers PPE to be a last resort.

If employees must travel by public transport for work purposes, their employer must provide facemasks as the wearing of facemasks is compulsory on public transport.

Can employers leave some employees in temporary unemployment when their business starts up again and, if so, can they choose which employees?
Yes, employers may decide to start up gradually and leave certain employees in temporary unemployment.

Employers are responsible for work organisation and can decide which employees will remain temporarily unemployed and which employees will return to work, as long as they do not discriminate. Employees have no procedure or right to oppose their employer's decision.

Can employers terminate employees who are placed in COVID-19 temporary unemployment?
Yes, employers can terminate the employment contract of any employee placed in COVID-19 temporary unemployment. However, a recently adopted bill provides for the suspension of the notice period during all periods of temporary unemployment on the basis of the simplified COVID-19 procedure. Contrary to what was initially proposed and following the Council of State's advice, the act has no retroactive effect (for further details please see "No retroactive suspension of notice period due to COVID-19 temporary unemployment").

Specifically, this means the following for notice periods served by employers:

• Notice periods served after 22 June 2020 (ie, the date of the law's publication in the Official Gazette) are fully suspended during all periods of temporary unemployment under the COVID-19 regime.
• Notice periods served before 1 March 2020 are not suspended and continue to run.
• Notice periods that were served after 1 March 2020 and are ongoing are suspended only by periods of COVID-19 temporary unemployment as from 22 June 2020 (ie, as from the date of the law's publication in the Official Gazette). Thus:
  • the part of the notice period that has expired is not suspended (and therefore no retroactivity applies); and
  • the part of the notice period that still runs after the law's publication in the Official Gazette is suspended.
    
    

Can employers check employees' temperatures before they enter the workplace?
Yes. Although, the issue of whether employers can check their employees' temperatures is controversial and has been much debated (for further details please see "FAQs: Employment Ministry's and DPA's new positions on checking employees' temperatures").

The Employment Ministry recently strengthened its position in this regard, indicating that although this is prohibited as a general principle, such temperature checks are permitted during the COVID-19 crisis provided that:

• they are carried out within a strict framework that is set out in the working rules (in line with the procedure provided for in Collective Labour Agreement Number 100 for performing alcohol and drug tests). Inclusion in the working rules requires the works council's approval or, in the absence of a works council, a 15-day consultation with the employees;
• employers consult the health and safety committee, the trade union delegation (in the absence of such committee) or the employees themselves (in the absence of such delegation);
• the checks are carried out by the occupational physician or the employees themselves; and
• such temperature checks are voluntary. If an employee refuses to have their temperature checked, their employer cannot, in principle, refuse them access to the workplace.
  
  

However, the Data Protection Authority (DPA) has taken a strict view on this matter. It considers that in the COVID-19 context, employers cannot check their employees' temperatures if this or its consequences (eg, absence from work) leads to the recording (ie, processing) of personal data relating to health, in which case the EU General Data Protection Regulation (GDPR) applies. The DPA argues that Belgian employers are not in a position to be able to rely on one of the exceptions provided for in the GDPR that allow such processing.

For further information on this topic please contact Phillipe De Wulf or Esther Soetens at ALTIUS by telephone (+32 2 426 1414) or email ([email protected] or [email protected]). The ALTIUS website can be accessed at www.altius.com.