Latest guidance after reinforced measures
As of noon on March 18, 2020, the Belgian federal and regional governments imposed a set of reinforced measures for the entire country to address the COVID-19 crisis. On Friday March 27, the national security council announced that the restrictive measures put in place by the federal government in response to the COVID 19 outbreak will be extended until at least April 19 with a possible additional extension until May 3.
Key measures in place as of March 18
The most far-reaching measures can be summarized as follows:
- Everyone is obliged to stay
at home in order to avoid contact outside their immediate
family as much as possible. Movement outside of an individual's
residence is prohibited, except for certain necessary and urgent
matters, such as:
- To go to work (subject to the rules on teleworking and social distancing requirements set forth in point 3 below);
- Essential travel (to the doctor, the supermarket, the post office, the bank, the pharmacy, to refuel a car or to assist people in need);
- Physical exercise in the open air is allowed and even recommended. This can be done with family members living under the same roof or with one friend. Social distancing rules (keeping at least 1.5m of physical distance between individuals) apply in these circumstances as well.
- Social gatherings (in the broadest sense) are prohibited, whether inside or outside, irrespective of whether they are private or public.
- Companies - irrespective of
their size - are obliged to organize teleworking for every job
position where this is possible, without exception. For
those employees whose job does not allow for teleworking, social
distancing rules should be strictly respected (i.e., at least 1.5m
of distance between employees at all times).
The social distancing rule applies both to the performance of the work and to transport organized by the employer. If it is impossible for a company to meet these obligations, it must close its doors.
If a company fails to comply with these measures, criminal fines can be imposed by the authorities (currently up to EUR 4,000 per infringement). In the event of repeated non-compliance, the government can order the company to close. The public prosecutors' offices have received clear instructions not to be lenient in the application of these sanctions.
The aforementioned restrictions on companies do not apply to certain key sectors and essential services, as exhaustively listed in the relevant governmental regulations. As of March 24, the list includes healthcare related sectors, media, key government functions (police, security, justice and crisis management), universities, fuel and food supply, hotels, postal services, the chemical and nuclear industry, the financial sector (banks, payment services, financial services and insurance providers), the packaging industry, producers of personal hygiene products or medical instruments, ports and airports (including related essential services) and utilities (energy, gas, water and similar supply, transmission and distribution services).
Companies qualifying as part of a key sector or that provide such an essential service will however still need to ensure that the rules on social distancing are complied with as much as possible.
Other restrictive measures
- All stores and shops will remain closed, with the exception of groceries, pharmacies, pet food shops and newspaper stands and stores. In addition, access to grocery stores will be regulated, with a limitation to a specific number of customers (no more than 1 person per 10m² and a maximum presence of 30 minutes per person).
- Public transport must be organized in such a way that social distancing can be guaranteed.
- Travel in- or outside of Belgium that is not considered necessary shall be prohibited. Internal checkpoints and border control are put in place to enforce this restriction.
- Outdoor markets will be closed. Food stalls are allowed only in places where they are indispensable.
- Finally, the basic hygiene measures at work remain applicable (e.g., in relation to frequently washing hands, staying home in case of illness, and maintaining a clean work place).
Main points of attention for Belgian employers in case of a partial or full closure of a site or when dealing with decreased workloads due to COVID-19
- As from March 13, 2020 and for the duration of the health measures imposed by the public authorities, a flexible application of the concept of force majeure is accepted and all situations of temporary unemployment related to COVID-19 are considered as temporary unemployment for reasons of force majeure, even if, for example, it is still possible to work on certain days. In practice, in case of a partial or full closure imposed by the authorities or a decrease in workload for the employees due to COVID-19, the legal regime of temporary unemployment which shall apply to the employer is based on force majeure only (even if such decrease in workload is due to direct or indirect economic reasons, such as supply chain disruption). The employer who had initially sent a notice of temporary unemployment for economic reasons can switch to the temporary unemployment scheme for force majeure (reason: "coronavirus") without having to complete any further formalities, even if some employees can still work or if it is still possible to work on certain days.
- Given the numerous requests for temporary unemployment on grounds of force majeure, the procedures for introducing temporary unemployment have been significantly simplified for both employers and employees. The employer who places the employee on temporary unemployment must make an electronic declaration with the National Employment Office ("NEO") of the hours of temporary unemployment during the month in question. He can choose between two communication channels: either via a web application on the social security portal site ("DRS Scenario 5"), or by sending a structured batch file (mainly via a payroll agency or a service provider). Employers who made the declaration and are under the temporary unemployment regime for force majeure must no longer pay the salary of the concerned employees. Those employees will instead receive unemployment allowances from the NEO corresponding to 70% their average salary with a ceiling (set at €2,754.76 (gross) per month) increased by €5.63 per day. The National Social Security Office ("NSSO") has confirmed that it is possible for employers to grant a supplement on top of the unemployment allowance to bridge the gap for employees with their normal salary without social security contributions being due, provided that (i) the supplement cannot exceed the unemployment benefit itself and (ii) the sum of the unemployment allowance and the supplement do not result in the employee receiving a higher net amount than when he or she actually works.
- Temporary unemployment for force majeure is also available for employees who are not sick but are ordered into quarantine by foreign or Belgian authorities.
- The hospitality sector, the sectors
of recreational, cultural, festive and sports activities, as well
as shops and businesses that are affected by a compulsory closure
are automatically entitled to postpone the payment of the
social security contribution due to the NSSO for the first
and second quarter, until 15 December 2020. Businesses which are
closed because they are unable to comply with the health measures
will also be able to benefit from this deferral on the basis of a
In addition, employers experiencing social security payment difficulties due to the COVID-19 crisis can request a clearance plan for the first and second quarters of 2020. This type of plan will allow them to spread monthly payments over a period of up to 24 months.
Main points of attention for Belgian employers who are not (entirely) in lockdown and who keep personnel on site
- As a general rule, as set forth above, companies are obliged to organize teleworking for every job position where this is possible.
- For employers for whom the organization of teleworking is not possible for all personnel, and who thus keep personnel on site, the social distancing obligations apply both to the performance of the work and to transport organized by the employer. A prevention advisor or occupational physician can assist to determine the best way to achieve that result. If constituted, the Committee for Prevention and Protection at Work should be involved in this assessment (by telephone conference during the lockdown). In the absence of a formal employee representative body, clear and transparent communication to employees about the guidance and requirements is key.
- Employers should also continue to promote the World Health Organization's more specific guidelines for measures at the work place to the extent applicable.
- Under Belgian law, employers are
under a continuing obligation to safeguard the
health and safety in the work place at
all times and take preventive measures if appropriate. The
employees have a duty to cooperate in that respect and should
therefore be encouraged to report their potential or actual
exposure to COVID-19.
However, due to applicable privacy laws, absent a specific legal obligation or government order, the employer cannot require employees to complete health-questionnaires, answer specific health-related questions or submit employees to mandatory testing for COVID 19.
Instead, employees should be made aware of the risks posed by COVID-19 and should be strongly encouraged to voluntarily self-report any symptoms/diagnosis or any high-risk travel, other activities or contact with other people who develop symptoms or are diagnosed.
The Belgian data protection authority clarified that it is allowed to measure temperatures of all individuals who want to enter a workplace, provided that the results are not stored or otherwise processed in combination with any personal data. In other words, it would be allowed for an employer to refuse individuals access to premises based on a temperature measurement indicating a (severe) fever (other than the employees themselves, see point 5 below). However, an employer cannot keep a log of individuals whose temperature has been measured and cannot inform others of the fact that a certain individual has a fever (except, under certain circumstances, the occupational physician, see the next point below).
- Strictly speaking, employers cannot order an employee to stay at home without their consent simply because they exhibit symptoms without a confirmed diagnosis. Yet, if the employee exhibits clear symptoms of COVID-19 (coughing, sneezing, fever, muscle pain) and, in the opinion of the employer, thereby creates a clear and imminent health risk to other employees, the employer must contact the relevant occupational physician, who will decide whether or not the employee must be tested. If the occupational physician decides that testing is required, the employee must report to the physician for testing and, in case they refuse and the occupational physician deems it necessary, can be required to stay at home in order to protect other employees.
- Voluntary self-reporting
procedures put in place by the employer should ensure strict
confidential treatment of the employee's health
information. Self-reporting should be directed to a
designated person (or small group) in the HR department who treat
the information as strictly confidential.
If an employee self-reports, the employer may therefore not disclose the identity of the employee to any other person such as the other employees present at the site. This is also simply not necessary in most circumstances in order to properly address the risk. Hence, in order to be able to inform others (in light of the aforementioned employer's obligation to take preventive measures), the employer may ask (but cannot order) the affected employee to provide a list of other personnel with whom the employee has come in contact for a specified period of time before having self-reported (e.g., 7-14 days). In that case, the employer should also let the affected employee know that this is the purpose of asking for the list.
If a list is provided, the employer may reach out (individually, not as a group, in order to guarantee confidentiality) to the individuals on this list and, if applicable, individuals who the employer should assume may also have been in contact with the affected employee during the relevant period of time by virtue of their role or the location of their working station, to inform them that they may have come into contact with a person who developed symptoms, was diagnosed or has other risk factors applying to them (travel, contact with symptomatic or diagnosed individuals), as applicable, but without divulging the identity of the affected employee.
As to those contacted employees , the employer may strongly encourage them to stay at home or agree with them to put in place other appropriate preventive measures (such as teleworking).
Finally, once information collected (including self-reported) about an employee's health-status is no longer needed for the purposes mentioned above, the information should be deleted and may no longer be used by the employer.
Key employment related incentives and measures taken at the level of the Regions
In the Flanders Region, pursuant to the Flemish Government Decree of March 18, 2020, the scope of the existing incentive premium program ("aanmmoedigingspremie") has been expanded specifically in light of the COVID-19 crisis. Any employee who is currently employed by a company with its operational seat in the Flemish Region that is suffering a decrease of at least 20% of turnover, production or orders (compared to same month previous year) due to the COVID-19 crisis, can apply for an incentive premium. In order to be eligible, the relevant employees must maintain at least a half-time working schedule (50% of full time job working time). The premium cannot be combined with certain other incentive measures provided by the Flemish Region. The employer must submit a specific plan to the Department of Work of the Flemish Government. Incentive premiums because of the COVID-19 crisis can be awarded for the period from April 1, 2020 (including retroactively if needed) until June 30, 2020.
The amount of the premium per employee is calculated as follows:
Temporary suspension of the social elections procedure 2020
- The social partners represented in the National Labour Council called for the procedure for the social elections in May 2020 to be temporarily suspended from day X+36. It will resume in the autumn, on a date to be determined, but most likely to fall in November (see below).
- In order to guarantee legal certainty for workers and employers, the lists of candidates will still be introduced until day X+35, i.e. between 17 March and 30 March 2020 (depending on the date chosen by companies to hold the elections).
- The electoral procedure will be resumed in the autumn, on a date to be determined by the Government on the advice of the National Labour Council. On the basis of this new electoral period, the companies will set their own new day Y (new election date, likely to be between 16 and 29 November 2020) and they will establish a new electoral calendar. This new day Y then results in a new electoral calendar as from day X+36. The electoral procedure will automatically resume as from this new day X+36.
- The National Labour Council also called on the Government to adopt the necessary legislative and regulatory framework as a matter of urgency and where necessary with retroactive effect in order to provide the necessary legal certainty to all parties concerned.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.