With the end of the legal recommendation to telework in sight, the question of health safety in the workplace gains further importance. There is indeed no legal basis (yet) for the obligation of an employee to get vaccinated, and it is complicated or even impossible for an employer to know exactly who is and who is not vaccinated within the company. Regular testing seems to be a perfect solution, but to what degree can the employer impose testing on his staff?
In the context of cluster management (e.g. in case of an outbreak), the employer can, following to the Royal Decree of 25 January 2021, subject his employees to recurrent tests for which the occupational physician determines the deadlines. The frequency of these tests can, for example, be extended in case of positive results. These quick tests can be administered to low-risk contacts, and even to the broader company population that is involved with the cluster.
In parallel to this, tests can also be performed within the company outside of cluster management (COVID-screening), when different conditions are fulfilled:
- the decision is taken by the occupational physician, based on the tendencies in the firm, the nature of the activities and the COVID-sensitivity of the region at that given moment;
- the decision is taken in consultation with the employer and with due regard for the social dialogue within the company;
- the period of use is limited and well-defined by the occupational physician, and can be extended if necessary;
- the quick tests can only be used for persons who must be present on the workfloor (not for teleworkers);
- the quick tests can only be used for the category of employees that may indicate an increased risk of virus transmission based on a number of elements (for example: number of contacts, physicality of the activity, ventilation of the workplace, …).
Outside of any contractual obligation, the employer may also decide to make self-tests freely available to employees. This provision of self-tests can, under no circumstances, give rise to an obligation to use them. The employer may therefore, not require workers to test themselves before starting work or during working hours. By no means, may the employer give instructions or directions or directly or indirectly compel his workers to perform such a test. If an employee freely chooses to utilise a self-test and the result is positive, he/she should not inform the employer or the occupational physician, but contact his/her private physician (who can then prescribe quarantine or self-isolation).
Lastly, a testing-coach may be appointed by the company doctor, if judged necessary, in companies where additional support seems necessary. The testing-coach, being an employee of the company, will then be an internal contact for the company staff for questions relating to the testing strategy and the COVID policy.
Key Action Points for Human Resources and In-house Counsel
- Check whether there are situations or categories of workers for which self-testing could be necessary.
- Ask the occupational physician to study the necessity and establish a procedure.
- If the conditions for self-testing within the company are not fulfilled, you can opt for the self-testing to be voluntarily used by the employees. However, there can be no obligation to use these tests and the employees should not inform the employer of the results.
- Make sure to respect the privacy of the employees.