The summer of 2021 seems to be another summer of travel measures, possible COVID-19 testing and quarantine obligations. Many employees will be leaving for holidays abroad in the coming weeks, which raises several questions for employers. What are your rights and obligations as an employer?
To determine which regions pose a risk, FSP Foreign Affairs uses coloured risk areas (see www.info-coronavirus.be ):
- Green zone: regions or countries for which a low risk of infection has been identified;
- Orange zone: regions or countries for which a moderately elevated risk of infection has been identified;
- Red zone: regions or countries where individuals are at a high risk of infection;
- Very high-risk area: regions or countries where a variant of concern has spread to a significant extent.
- The employer cannot oblige the employee to communicate his or her planned travel destinations. This can of course be discussed on a voluntary basis.
- Nor can the employer forbid the employee to leave for a red zone or a very high-risk area.
- Even when returning, the employer cannot, in principle, oblige the employee to reveal where he or she has been. However, the employer can draw the employee’s attention to the general obligation for all persons present at the workplace to comply with the rules imposed by the government regarding COVID-19 (including filling in the PLF form and the testing and quarantine obligations if applicable). Compliance can be checked by the occupational physicians and by the inspection services, who may also ask all persons involved to provide evidence of compliance with these obligations.
- In any event, if the employee is placed in quarantine (e.g., because of return from a very high-risk area), he or she is obliged to inform the employer immediately and, if the employer so requests, to provide a medical or quarantine certificate.
Mandatory test and medical certificate?
- The employer cannot oblige the employee to undergo a COVID-19 test or to provide a medical certificate stating that the employee is fit for work.
- Therefore, the access to the work floor cannot be denied to an employee who returns from a green or orange zone.
- The employer cannot oblige the employee to go into quarantine when returning from a green or orange zone unless the employee has a quarantine certificate. However, the employer and the employee can make the necessary arrangements for teleworking, insofar as possible.
- For the quarantine obligations after returning from a danger zone, a distinction is made as of 1 July 2021 based on the digital COVID-19 certificate (proof that someone is vaccinated, recently tested negative or recovered from COVID-19).
Temporary unemployment or guaranteed salary?
- The employee is not entitled to temporary unemployment benefits if he or she is fit for work and must undergo compulsory quarantine because of a return from a red zone that was already red on the date of departure (e.g., the employee does not have a COVID-19 certificate and does not take a PCR test or the employee takes a positive PCR test and is not fit for work). The employee is also not entitled to temporary unemployment benefits when returning from a very high-risk area that was already considered a very high-risk area at the time of departure. The FAQ of the NEO does mention an exception for essential travel, such as travelling for professional reasons. The NEO does reserve the right, in the case of professional travel, to verify whether the employer has not acted manifestly unreasonably by sending the employee abroad (question of fact). If the zone had not yet been designated as a very high-risk area at the time of departure, the employee who is fit for work and cannot telework is entitled to temporary unemployment benefits (quarantine certificate).
- The employee is entitled to guaranteed salary for 30 days if he or she is unfit for work due to infection with the coronavirus (medical certificate).
Provide clear communication towards your employees about their departure and return, including guidelines on quarantine obligations upon return from abroad. If necessary, take preventive measures to minimise the risk at the workplace.