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' (i.e., the so-called 'corona procedure') 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.
The corona procedure is currently accepted by the RVA until 30 June 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 the corona procedure. 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, the corona procedure does not apply if it is a purely preventive measure imposed by the employer himself in order to avoid contamination in the company.
The Unemployment Office (RVA/ONEM) has adapted its procedure on temporary unemployment, now called the “corona procedure”. From now on, it is no longer necessary to distinguish between force majeure and economic unemployment. If, as a result of the various measures taken in the context of the corona procedure, the company can no longer employ its employees, either fulltime or part of the time, a temporary unemployment benefit can be claimed for all days on which it is not possible to work.
The procedure now becomes automatic and will be much faster. The application procedure will be significantly simplified by making use of 1 unique application, which will include the personal data, and which will mention “corona” as the only reason for unemployment. The employer must inform the competent unemployment office via the "Electronic declaration of social risk - scenario 2" and provide a file with evidence and an explanation showing that the unemployment is due to force majeure as a result of the corona crisis. Control cards no longer need to be handed in.
The temporary unemployment due to force majeure can be applied for with retroactive effect from 13 March and is currently in force until 30 June.
Unemployment days may be alternated with working days. Employees receive their salary for the working days. For the days of unemployment, workers receive an unemployment benefit. In addition to this unemployment benefit, the RVA/ONEM also pays an amount of € 5.63 per unemployment day.
Employees must fill in a document C3.2 and send it to their workers union or the auxiliary fund so that the payment can be made correctly.
For example, the corona procedure applies to:
- Companies affected by a decline in the number of customers/orders, as a result of which they are unable to provide sufficient work;
- Companies for which only partial closure is imposed or which, despite the compulsory closure, are still able to offer limited services;
- Suppliers of employers who must close down and are therefore unable to employ their own staff;
- Companies that are no longer able to employ their staff because they are dependent on a supplier that is no longer able to supply because of the corona crisis;
For now, the schools will remain open and childcare will be provided. The nursery schools will also remain open. Consequently, one cannot normally invoke a lack of childcare to start the corona procedure.
Only if it is clearly demonstrated that there was no childcare (for example, the school would be materially incapable of providing it) and the parent has no alternative (no teleworking possible, the partner cannot help out, only the grandparents or other elderly persons could help), the corona procedure can be requested.
The social partners have agreed to postpone these until after the summer as from day X+36.
In concrete terms, this means that the progress of all procedural steps falling after X+35 will be postponed. This year's social elections will therefore not take place between 11 and 24 May, but on a date to be determined which will probably fall after the summer of 2020. On this date to be determined later this year, the procedure will be resumed as from day X+36.
We are currently in the phase of the submission of the candidate lists by the trade unions and this procedural step must still be continued up to and including day X+35. However, you still have to complete this phase of first submission of applications.
Despite the fact that the procedure will be frozen from day X+36 onwards, the notice of complete termination of the procedure may already be drawn up, posted and uploaded onto the web application of the FPS. Attention, this only applies for a complete termination where no list of candidates has been submitted.
The mandatory first posting of the candidate lists by the employer on day X+40, as well as the mandatory agreement on the appointment of the (substitute) president on day X+40 is postponed.
Exactly what the impact will be on the occult protection period will be worked out in more detail, but the FPS has confirmed that this postponement cannot be intended to create an extension of occult protection periods and that every effort will be made to limit such harmful consequences.
Practical arrangements are currently being studied and will soon be published on the website of the FPS.
Should you have any questions regarding the upcoming social elections, or require assistance from our experts, please do not hesitate to contact the BDO Social Legal team: