The opening of EU’s internal borders, the Schengen area and the United Kingdom makes travel again possible. Many employees go abroad on holiday, which raises various questions for employers. What are your rights and obligations as an employer?
In order to determine which regions imply a risk, the Federal Public Service Foreign Affairs works with coloured risk areas (red zone: high risk; orange zone: moderate increased risk; and green zone: low risk).
- The employer cannot oblige the employee to inform him about his/her planned travel destination(s). Of course, this can be discussed on a voluntary basis.
- Nor can the employer forbid the employee to travel to a risk zone.
- Also upon return, the employer can in principle not oblige the employee to inform him of his/her travel destination. On the other hand, the employer has the obligation – based on the OH&S legislation – to analyse the risks due to the coronavirus, and to take the necessary measures. The employer can at least encourage the employees to inform him spontaneously when they return to Belgium from a red or an orange zone.
- If the employee has been placed in quarantine (e.g., due to returning from a red zone), he/she must in any case inform his/her employer immediately and, if requested by the employer, provide a medical certificate or quarantine certificate.
Mandatory test and medical certificate?
- The employer cannot oblige the employee to undergo a COVID test, nor to provide a medical certificate that the employee in question is fit for work.
- Therefore, access to the work floor cannot simply be denied to an employee who returns from a green or an orange zone.
- The employer cannot oblige the employee to go into quarantine if he/she is returning from a green or an orange zone, except if the employee has a quarantine certificate. However, the employer and employee can make the necessary arrangements regarding telework, insofar as this would be possible.
- If the employee returns from a red zone, the employer can refuse access to the work floor for 14 days after the travel, as the government foresees a mandatory quarantine in this case.
- Since there is currently no legal regulation allowing temperature measurements, the employer cannot simply measure the temperature of employees who have travelled.
- According to the Federal Public Service Employment, Labour and Social Dialogue, this could be possible under certain circumstances during COVID-19, if the decision to launch and the modalities are included in the work regulations, according to the usual amendment procedure. However, the Data Protection Authority has adopted a strict position, which makes temperature measurements practically impossible.
Presumption of increased risk when returning from a green or an orange zone?
- The employer has a general “duty of care”, which obliges him to take the necessary measures to promote the well-being of all employees.
- The employer can therefore – in consultation with the internal and external prevention services and the committee for prevention and protection at work – draw up a prevention plan with measures for employees returning from a zone with an increased risk, such as an orange zone. For example, it can be foreseen that teleworking will be applied and employees will be asked to take a test. The employer has to guarantee that the communication about these rules is transparent.
Temporary unemployment or guaranteed salary?
- The employee is – based on the current national employment office guidelines – entitled to temporary unemployment benefits if he/she is fit for work, but must go into quarantine because of returning from a red zone (quarantine certificate).
- The employee is entitled to guaranteed salary for 30 days if he/she is not fit to work due to a coronavirus infection (medical certificate).
Engage in clear communication with employees regarding their departure and return and – if necessary – take preventive measures to minimise risks on the work floor as much as possible.