Corona unemployment – Formalities for the employer

Special Powers Royal Decree no. 37 of 24 June 2020 provides for new duties but also rights for employers. First, employers must inform the employees who are temporarily unemployed of the days of suspension of the execution of their employment contract. Besides, this decree authorises calling on third parties or students to perform the work usually performed by an employee placed in quarantine. This decree also includes the model standardised medical certificate to be used by the medical profession in the exceptional health context of the COVID-19 crisis. Furthermore, financial sanctions are provided for in the event of non-compliance with the obligations imposed on employers in the workplace in the context of combating the spread of the coronavirus.

1. Obligation to provide information to employees in the event of temporary unemployment

An employer who wishes to apply “corona unemployment” and thereby to suspend the performance of the employment contract or to introduce a reduced working time scheme must inform from now the employee(s) concerned individually. This notification to the employees must specify:

• the days or the number of days during which the employee is temporarily unemployed and, where appropriate, the days or the number of days during which the employee is expected to work;
• the period covered by this notification.

Such notification must be made no later than the day before the suspension or the introduction of the new reduced working time scheme enters into force, and, in any event, before the employee leaves home to go to work.

If the suspension or the introduction of the new working time scheme concerns several employees at the same time, the notification may also be made collectively, provided that each individual employee is clearly aware of the working time scheme which applies to him/her.

If applicable, the employer must inform the works council or, if there is no works council, the trade union delegation. He must also inform the employee of the formalities he/she must complete in order to be eligible for unemployment benefits.

The obligation to provide information applies:

• each time the employer increases the number of days of unemployment initially planned;
• each time the employer changes from a reduced working time regime to a period of total suspension of the execution of the employment contract.

In the absence of information, the employer may be required to pay the employee his normal salary for the period preceding the completion of these formalities.

2. Employee in quarantine – calling on third-parties or students

If an employee is fit for work but remains unable to carry out his/her work due to quarantine, the performance of his/her employment contract will be suspended. In this case, the employer may outsource the work usually performed by the employee to third parties or have it performed by students.

Calling on third parties or students, on the other hand, remains prohibited for work normally carried out by a covid unemployed employee who is not quarantined.

In the event of non-compliance with this prohibition, the employer is obliged to pay the employee his normal salary for the days during which he outsourced the work to third parties or had students perform the work normally performed by that employee.

3. Model quarantine certificate

If the employee is quarantined without being ill himself, he must immediately inform his employer. At the employer’s request, the employee must submit a medical certificate confirming the quarantine. This certificate must be drawn up in accordance with the model annexed to Special Powers Royal Decree no. 37.

4. Financial sanctions in the event of non-compliance with corona measures

In the event of failure to comply with the emergency measures to limit the spread of the coronavirus that must be taken in the workplaces of undertakings (preventive measures to ensure the protection of employee’s health and safety), the employer is liable to a level 2 penalty, provided for in the Social Penal Code.

The employer may therefore have to pay an administrative fine of EUR 200 to EUR 2,000 or a criminal fine of EUR 400 to EUR 4,000, multiplied by the number of employees concerned (limited to 100).

Action point

• If you apply for corona unemployment, make sure that you inform the employees concerned promptly about both the days of unemployment and the days of work if there is no full suspension.
• Consider calling on third parties or students to perform the work normally performed by a quarantined employee.