Decrees, orders or guidelines in effect and pertaining to reopening facilities.
The legal basis of the reopening of companies is laid down in the Ministerial Decree of 23 March 2020. This Decree has been amended multiple times to adapt the rules for each stage of the reopening. According to art. 2 of the Ministerial Decree of 23 March 2020, companies have to take preventive measures, which are based on the “Generic Guide for Combatting COVID-19 at Work” of the Federal Government. This guide provides a framework with measures that can be adapted by the different sectors, and by each employer, to their specificities in order to ensure that the activities can be resumed under the safest and healthiest possible conditions. This Generic Guide is further specified by sectoral guides set up by the Joint Committees.
- The latest version of the Ministerial Decree of 23 March 2020 is available only in Dutch or French.
- The English version of the Generic Guide is published on the website of the Federal Public Service Employment.
- The sectoral guides are usually only available in Dutch or French.
- For more information on the reopening of the economy, consult Van Olmen & Wynant’s dedicated newsletter or FAQ on Corona.
Optimal approach to keep track of the latest updates.
Van Olmen & Wynant has an up-to-date FAQ on Corona in English and will publish newsletters on new initiatives. Other useful websites to find the latest developments are the website of the FPS Employment (only in Dutch or French) and the website of the Federal Association of Enterprises (in English) and Unizo (for SME’s, only in Dutch) and the general governmental website with information on the Coronavirus (in English), the website of the Federal crisis center (only in Dutch, French and German), as well as the websites of Brussels (in English), Flanders (only in Dutch) and Wallonia (only in French).
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
As of 13 March 2020, all temporary unemployment resulting from the coronavirus can be considered as temporary unemployment due to force majeure. This flexible temporary measure of the federal government is valid until 30 June 2020 (but it is likely be prolonged afterwards or followed by a transition period). Under this system, the employment contract is suspended and the employees will receive an allowance of 70% of their capped salary. On top of this, the government will add a supplement of €5.63 per day. Only a withholding tax on professional income of 26.75% will be deducted from the benefit. Parliament is likely to reduce this withholding tax to 15% as of May 2020 until the end of the year. More information can be found in our Corona FAQ.
Companies that had to close down due to the lockdown can request to postpone their social security contributions to 15 December 2020 (for some sectors this postponement was automatic). If the company experienced economic consequences as a result of the COVID-19 virus, and the company has difficulties paying the social security contributions, the employer may apply to the National Social Security Office for an amicable repayment plan for the first and second quarter of 2020. Companies can also request an amicable repayment plan for their taxes. More information ca be found in our Corona FAQ.
The regional governments provide subsidies:
- A subsidy of €4,000 for companies which had to close down in March. If they still had to close down after 5 April, they received an additional €160 per day. If the company has multiple exploitation seats, it can be awarded a maximum of 5 times per company.
- A compensation of €3,000 for companies that did not need to close down, but lost more than 60% of their revenue between 15 March and 30 March, compared to last year (also a maximum of 5 times for companies with multiple seats).
- Another important Flemish measure is the corona-loan for SME’s: see our dedicated newsletter.
- More information and other Flemish measures are also available.
- A subsidy of €4,000 for companies which had to close down (only for certain sectors).
- A compensation of €2,000 for small enterprises with not more than 5 employees, which suffer under the lockdown (e.g. majority of employees on temporary unemployment).
- Postponement of city taxes.
- More information and other measures are also available.
- A subsidy of €5,000 for small and micro enterprises (less than 50 employees) if they needed to close down during the lockdown (only for certain sectors).
- A subsidy of €2,500 for small and micro enterprises which had to reduce their business.
- More information is also available.
Requirements mandated by law or any official guidance.
The Ministerial Decree of 23 March 2020 does not impose specific measures, but refers to the Generic Guide and the sector guides will include the possible preventive measures. At the end, it is the responsibility of the employer to take sufficient preventive measures. Telework and social distancing are still recommended standard practices. Next to the Ministerial Decree of 23 March 2020, the duty for the employer to take preventive measures concerning the health and safety of employees also follows from the Employment Agreements Act of 3 July 1978, and the Act on the wellbeing at work of 4 August 1996 and the related Codex on Wellbeing.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Social distancing and telework are still highly recommended where possible. Next, the Generic guide includes recommendations concerning:
- Communication of the measures and rules to employees;
- Maximal application of social distancing;
- Hygiene measures (hand + respiratory);
- Cleaning of the workplace, tools and social facilities (e.g. break room, cafeteria,…);
- Collective protection measures (partition walls, placing of marks, rope and ribbons to separate persons,…);
- Individual protection measures (mouth masks, gloves, protective clothing, glasses,…);
- Mouth masks are especially recommended when social distancing is not possible;
- Measures for the commute from home to work;
- Measures for the arrival at work;
- Measures for inside the locker rooms;
- Measures for at the work post/during work, including meetings;
- What to do when an employee becomes ill at work;
- Measures for sanitary amenities (toilets);
- Measures for during breaks;
- Measures for the circulation at work;
- Measures for returning to home;
- Rules for external persons (visitors, clients, deliveries…);
- Measures for external employees or independent workers or multiple employers at the same location;
- Measures for working on location;
- Measures for off-site work;
- Measures for working from home (telework).
Policies and procedures for telework once the business reopens.
Until the reopening of the companies (11 May 2020) telework was mandatory whenever it was possible. Now, it is no longer compulsory, but it remains strongly recommended by the government. This system of telework does not really fit the standard systems of structural or occasional telework, but the National Social Security Office allows employers to give their teleworking employees a monthly cost compensation of which no social security contributions (nor taxes) are due. Although it is not a legal obligation, it is recommended that employers should sign a telework agreement with the employees, or that they would provide a telework policy (the rules can be included in the work rules). More information can be found in our Corona FAQ.
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
If employees become sick due to COVID-19, it will be treated according to the normal rules of sick leave (COVID-19 might become recognised as an occupational disease, which will give right to a higher allowance). The government has created a new medical certificate, the quarantine certificate, which is meant for employees who should confine themselves, because they came into contact with persons who are infected or because they tested positive, but do not show any signs. In that case, the employer can put these employees on temporary unemployment. More information can be found in our Corona FAQ.
Further, the government has introduced a system of corona-parental leave (applicable until 30 June) for parents of children up to 12 years (or disabled children). They can use this specific form of parental leave to decrease their working time with 1/5th or ½ in order to take care of their children. They will receive a higher allowance than is provided for the normal parental leave. Read more about this leave in our dedicated newsletter.
Employees who fear infection and refuse to work.
In order to prevent these situations, it is important to involve the structures for social dialogue at the company. The preventive measures should be discussed in the works council and the health and safety committee. In this way, the employees’ representatives can help to create support for the measures and facilitate their enforcement. Communication of the measures is key and it is equally important to effectively enforce the hygienic and safety rules. Concerned employees can address their worries to their superiors, the prevention advisor or the health and safety committee. If they still feel like the employer is not taking sufficient measures, they could contact the competent social inspection, which might control the company (after contacting the prevention advisor). Some academics have argued that workers have a right to remove themselves from the workplace in case of a grave and imminent danger (like the coronavirus). However, the relevant legal provision has never been called upon before the courts. Most Belgian employers will try to address these issues with a clear policy, which is communicated to the workers. If this does not help, it could be possible to take disciplinary measures against the illegally absent employees. Find more information in our Corona FAQ.
Disclosure of employees who are infected.
By virtue of the principle of confidentiality (GDPR Article 5.1, f) and the principle of minimum data processing (GDPR Article 5.1, c), an employer may not simply disclose the names of the infected persons involved within the company. Proportionality is also an important principle to be observed when processing personal data (medical or otherwise). With a view to, for example, preventing further dissemination, the employer may of course, inform other employees of an infection, without mentioning the identity of the person(s) involved. The name of the infected person may, however, be communicated to the occupational physician or the competent government services.
The Federal government also introduced some flexibility in labour law (mostly restricted to essential sectors), read more in our dedicated newsletter. For more information on other issues, consult our Corona FAQ.
To what extent can employers implement the following cost-reduction strategies as a result of COVID-19, and what are the primary limitations on each?
The legal principle is (and remains at least for the time being) that holidays are fixed in mutual agreement between the employee and the employer. Most of the companies we have been in touch with take on the following approach: they request employees to plan a certain percentage of their holidays before a certain date (e.g. 70% needs to be planned before the end of September). Although we have not seen this before, we believe the employer could also request to plan all holidays before a certain date. In this case, the individual employee still has the possibility to freely choose the date of his holidays. Next, under certain conditions, it is possible to introduce a collective leave for the company or a department, during which all the employees have to take leave for a specified period. If the sector did not foresee this, such a collective leave can only be imposed by an amendment of the work rules. In any case, employers must make sure that employees can take their leave before the end of the year.
- Salary reductions.
It is not permissible to unilaterally reduce the salary of an employee. This is an essential element of the employment contract. Therefore, an imposed salary decrease will be seen as an implicit dismissal, which constitutes an irregular termination of the employment contract. A salary reduction is allowed with the consent of the employee(s) concerned.
It is still possible to dismiss employees. The normal rules will apply.
- Facility closure.
The normal rules for collective dismissals and closing of the company will apply. This includes a mandatory information and consultation procedure, the negotiation of a social plan and, under certain conditions, the payment of an additional compensation.
Tips, recommendations and common pitfalls.
- Be sure to have a clear policy with measures to prevent the spread of COVID-19, based on the recommendations of the Generic Guide or the sectoral instructions. This will allow your company to reopen safely, assure your employees and clients, and prevent a fine or even a company closure by the social inspection.
- Involve the Health and Safety Committee and the expertise of the prevention advisors. If necessary, consult an external prevention service to provide the necessary expertise.
- When implementing measures, take into consideration the privacy rights of your employees and other limitations set by Belgian employment law.
- Enforce the prevention measures and communicate with employees about their fears in order to prevent or overcome issues with work refusals.
- If possible, allow your employees to telework and provide a clear telework policy.
- Show your employees that the company is doing everything in its power to create a safe workplace in order to create goodwill among the employees, to show flexibility as well as a positive attitude during the current crisis.
If you have any questions, please contact the following representative:
Chris Van Olmen, Partner
Van Olmen & Wynant
+ 32 2 644 05 11