Covid-19 and labour law in Belgium

1. Well-being obligations at work

An important source is health and safety at work. Obligations in this regard are laid down in the Employment Contracts Act of 3 July 1978 (‘ECA’), and in the Workers’ Well-being Act of 4 August 1996 (‘Well-being Act’), complemented with a related ‘Codex on Well-being’. ⁴ Pursuant to Article 20.2° ECA, the employer is obliged, ‘in a spirit of good housekeeping, to ensure that work is carried out in decent conditions with regard to the safety and health of the worker and that, in the event of an accident, the first aids can be provided to him.’ It is generally assumed that this measure is made more concrete in the Well-being Act. But an employer who has to deal with an unhealthy situation at work, or with a worker whose health is endangered, can (and should) act also on the basis of the ECA (e.g. by prohibiting a worker from continuing to work or by sending a worker home).

As far as the Well-being Act is concerned, which also applies in the public sector, it is important to point out Article 5, §1, first paragraph of this Act. On this basis, the employer must take the necessary measures to promote the well-being of employees in the performance of their work. The Well-being Act clearly indicates that the employer bears ultimate responsibility for well-being at work; an obligation which is not displaced by the employer’s mandate to call in well-being or safety and health experts. Article I.2-13 of the Well-being Codex makes explicit the fact that the employer cannot delegate this final responsibility. ⁵ When taking measures to promote the well-being of employees, the employer must in fact apply the following general prevention principles: firstly, preventing risks; and possibly also taking measures to adapt the work to people, or the (re)organisation of workstations.

It must be noted that there is a shared responsibility for health and safety. Employees also have duties. Based on Art. 17. 4° ECA, an employee is obliged to ‘refrain from doing anything that may cause damage either to his own safety or that of his fellow workers, his employer or third parties’. It is striking that Art. 17. 4° ECA, refers to safety and not to health, but it can be assumed that hazards to one’s health are also a safety problem. Thus, an employee is also personally bound not to endanger the health of him/herself, his/her employer, colleagues or third parties. This is also a basis for a duty to cooperate with the well-being strategy in the work organisation.

It is, therefore, clear that an employer, based on various legal sources, can order staff members to leave their workplace, to observe hygiene measures, or to adjust their work or way of working together. Obviously, the employer must assume the obligation to provide work pursuant to Art. 20. 1° ECA, and must observe the principle that the employment contract must be respected (cf. 1134, paragraph 1 of the Civil Code). ⁶ However, the pursuit of continuity does not detract from the obligations within the framework of Article 20. 2° ECA and the Well-being Act, namely the safeguarding of everyone’s health and well-being.

In the field of health assessment, the role of the occupational physician is crucial. Pursuant to Article I.4-4 § 2 of the Well-being Code, the employer must notify the occupational physician if an employee complains of discomfort or if he/she finds that an employee’s physical or mental condition undeniably increases the risks associated with the workplace. In doing so, the occupational physician shall, in principle, independently assess whether a worker should be subject to a health assessment and whether measures can be taken to adapt working conditions. This plays an important role in the provision and application of quarantine and self-isolation measures.

2. Teleworking in (light) lockdown and beyond

One of the main measures taken by the Belgian Government in the (light) lockdown has been an obligation for employers to organise teleworking.

On the basis of the Ministerial Decree of 23 March 2020, the Government made a distinction between essential and non-essential businesses. Non-essential businesses were obliged to organise teleworking or, if not possible, apply social distancing in the workplace (a 1.5-metre distance). If social distancing could not be guaranteed, non-essential businesses had to close. Furthermore, even essential services had to organise teleworking if possible.

Due to this, many organisations and a lot of work could be continued. However, in the shop and retail sector, as well as in the entertainment, restaurant and catering sectors, businesses were obliged to close. At a certain moment, about 25% percent of the private labour market became unemployed. The Government responded to this with a temporary unemployment scheme (see below).

With the obligation to provide teleworking, the Government referred in its communication to the Workable and Flexible Work Act, ⁷ which enables ‘occasional’ teleworking in case of force majeure. ⁸ However, after a while the question has arisen regarding how this situation, as it lasts over time, relates to ‘structural’ (non-occasional) teleworking, which is regulated in another legal source, National Collective Agreement no. 85. ⁹ In the case of structural teleworking, a written annex to the employment contract has to be provided and employers also have to bear some of the costs of teleworking. Teleworking then becomes part of the regular working conditions. This transition from occasional to structural teleworking has not been clarified nor specified so far, despite the Government’s initial measure to temporarily enforce the use of teleworking.

The situation leaves a number of legal questions untouched. The legal requirement that both (occasional and structural) teleworking should always be voluntary, seems to have been temporarily overruled by the Government’s Covid-19 measures. Here, of course, the relationship with the legislation on well-being becomes relevant. It may be argued that teleworking can be part of the adaptations and protective measures that employers need to make under their well-being (health and safety) obligations. The discussion about whether teleworking remains voluntary under these conditions and how costs for teleworking are taken care of by the employer, remain open. Another unanswered question is whether teleworking, in light of Covid-19 measures, becomes a structural condition of the employment relationship, or even a (temporary) condition, for which the employee’s consent needs to be given. Much will depend on how the situation evolves over time.

Bearing in mind that the measures may persist for a long time, and are also recommended in the exit scenario, it may be an option for employers and employees to switch from occasional to structural teleworking. But the existing legal questions will not all be resolved easily.

3. Temporary unemployment and force majeure

An important feature of the Belgian system during the Covid-19 crisis is the use of temporary unemployment. It is a scheme that has existed for some time in Belgium. Temporary unemployment provides for a mechanism whereby, in cases where an employment contract needs to be temporarily interrupted (suspended) for economic reasons or for reasons of force majeure, an employer is allowed to suspend the work activities as well as the payment of wages, while the employee concerned is entitled to an unemployment benefit borne by the social security system.

In order to deal with organisational and economic difficulties of businesses during the Covid-19 crisis, the Government has relaxed the qualification requirements under the temporary unemployment scheme. Due to the ease with which employers have been allowed to apply for temporary unemployment for their workers (and thus to temporarily discontinue work), about 25% of the private sector was reported to be on temporary unemployment during the height of the coronavirus crisis.

From a labour law point of view, it is clear that the Government has opted for a flexible interpretation of Article 26 of the Employment Contracts Act (ECA) providing that employment contracts are suspended in case of force majeure. While the motivation in relaxing temporary unemployment is well-intentioned, there remain some consequences in the field of labour law. ¹⁰ It remains unclear what the difference is between temporary unemployment for economic reasons and temporary unemployment due to force majeure. In the latter case, as seems to have become the default situation, there are no specific obligations for employers to inform and consult with workers in the enterprise. Furthermore, the case law does not automatically accept force majeure, so the employer would still need to prove that force majeure indeed prevented him from fulfilling his/her obligations to provide work. Support will be found, of course, in the fact that the Government itself has accepted a broad interpretation of force majeure in light of temporary unemployment.

While remuneration is suspended, the benefit for temporary unemployment of workers is based on the earned wages (calculated as a percentage and, in principle, averaging 70% of a (capped) gross salary). The employer may, furthermore, pay a supplement on top of the benefit for temporary unemployment, which in practice they often do. The easing of the system has been announced to last until the last day of August 2020. After this date, the application of the system becomes more conditional.

4. Health and safety in the exit scenario

The Belgian plan for easing restrictions imposed during the ‘lockdown’ contains different stages. The most important date was 4 May 2020; when most businesses were permitted to return to a more regular way of working (with stores having reopened on 11 May 2020). However, this was subject to very strict conditions with regard to health and safety. ¹¹ It will thus not be business as usual.

In the Ministerial Decree of 30 April 2020, it is provided that teleworking is still recommended in all non-essential undertakings, whatever their size, for all members of staff whose functions lend themselves to this. ¹² If teleworking is not used, undertakings shall take the necessary measures to ensure maximum compliance with the rules of social distancing, in particular maintaining a distance of 1.5 metres between each person. This distancing rule also applies to transport organised by the employer. Since teleworking is (only) ‘recommended’, it is thus not prohibited for employers to require that people return to the normal workplace.

The Ministerial Decree of 30 April 2020 provides that, for all cases where working from home is not possible or applied, employers must take appropriate preventive measures in good time to ensure a sufficient level of protection. According to this Ministerial Decree, these preventive measures are ‘health and safety requirements of a material, technical and/or organizational nature as defined in the general guide to prevent the dissemination of COVID-19 at work, which is made available on the website of the Federal Government’s Administration of Employment, Labour and Social Dialogue, supplemented by guidelines at sectoral and/or enterprise level, and/or other appropriate measures offering at least an equivalent level of protection.’

In other words, the Government issued, in consultation with the social partners and the National Labour Council, a ‘guide’ on how to organise work in the exit phase. ¹³ This official guide is very substantial and detailed and includes individual and collective measures, such as hygienic obligations, social distancing, the wearing of masks, organising the work but also transport or lunch breaks in a safe manner. The appropriate measures must be drawn up and taken at the enterprise level in compliance with the rules of social dialogue and consultation within the enterprise or, in the absence of mechanisms for this, in consultation with the workers concerned and in consultation with existing prevention and protection services.

It is clear that the obligations, including the application of the Government’s ‘guide’, must be seen in light of the employer’s obligations regarding well-being at work, as provided in the Well-being Act (1996), referred to above.

The social partners, moreover, created a special medical certificate, the so-called ‘quarantine certificate’. This certificate applies to workers who are able to work but, notwithstanding, have to stay in quarantine and therefore may not travel to the workplace. This can be used when workers are infected but show no symptoms, when they have been in close contact with an infected individual or when they belong to a high-risk group. ¹⁴ The workers concerned are allowed to telework during this period of self-isolation. In this case, their wages will have to be continued. If teleworking is not possible, these workers are entitled to the temporary unemployment benefits, based on the social security system.

5. Privacy and GDPR

In crisis situations, the right to privacy is often the first victim. However, the right to privacy is a fundamental right, which enjoys fundamental protection in, among others, the Belgian Constitution (Art. 22 Constitution) and the European Convention on Human Rights (Art. 8 ECHR). Furthermore, the right to privacy protects one’s personal data and one’s physical and psychological integrity. All these perspectives are relevant in the coronavirus context. An important additional source is provided by the right to protection of personal data, formed by the General Data Protection Regulation (GDPR). ¹⁵

Within this framework, the Belgian Data Protection Authority (DPA) ¹⁶ issued a recommendation concerning the handling of the coronavirus in the employment relationship. The text called COVID-19 and the processing of personal data in the workplace’ was published online on 13 March 2020 and updated on 20 March 2020 and on 3 April 2020 (with possible later updates depending on developments). ¹⁷ We refer below to the Coronavirus Recommendation of the DPA. The Recommendation raises a series of questions, which are addressed below. However, we add a number of questions and concerns.

First of all, the DPA points out the importance of the general principles of the GDPR. In the context of the processing of personal data (and thus legitimisation thereof), the DPA refers to Art. 6(1)(d) of the GDPR, which refers to the necessity of the processing ‘in order to protect the vital interests of the data subject or of another natural person’. In this context, one may, however, raise the objection that in the context of the employment relationship, other processing grounds of Article 6(1) of the GDPR may also be relevant, such as in particular the necessity of the processing for the performance of a contract to which the data subject is a party (Art. (6)(1)(b) GDPR); to comply with a statutory obligation (Art. 6(1)(c)); to perform a task in the public interest (Art. 6(1)(e)); or even the necessity to protect the legitimate interests of the controller or a third party (Art. 6(1)(f)).

With regard to health data, however, only more limited and stricter conditions apply to the processing of personal data pursuant to Article 9(2) of the GDPR. Here, too, the DPA in the Coronavirus Recommendation refers in particular to Art. 9(2)(i) GDPR: ‘processing is necessary for reasons of public interest in the field of public health’. However, there are other relevant grounds for the processing of personal data in the employment relationship, such as the necessity for the performance of obligations and the exercise of specific rights of the controller or the data subject in the field of employment law (Art. 9(2)(b) GDPR); for the protection of the vital interests of the data subject or of another person (Art. 9(2)(c) GDPR); for reasons of substantial public interest (Art. 9(2)(g) GDPR); for purposes of preventive or occupational medicine, or for assessing the employability of the employee (Art. 9(2)(h) GDPR).

Furthermore, in its Coronavirus Recommendation, the DPA refers to the role of the occupational physician. According to the DPA: ‘[f]urthermore, the assessment of the risks to health should not be carried out by the companies and employers but by the occupational physician, who is responsible for detecting infections and for informing the employer and the persons who came into contact with the infected person. This information is provided by the occupational physician on the basis of articles 6.1, c) and 9.2, b) GDPR (processing in execution of an obligation under employment law).’

A number of questions are dealt with by the DPA. For example, is it allowed to check the body temperature of workers? Evidently, measuring body temperature serves to determine whether someone may have a fever. In its Recommendation, the DPA states: ‘[t]he DPA does not consider the mere recording of body temperature as a processing of personal data. Insofar as such temperature recording is not accompanied by an additional recording or processing of personal data, the GCC does not apply.’ Indeed, the GDPR will only apply if one is dealing with an automated processing operation or if the data will be entered into a file. This does not seem to be the case with an ordinary temperature measurement. However, when software or intelligent cameras are used, the GDPR will be applicable.

The question that needs to be asked is whether the measurement of a person’s body temperature can be made compulsory and whether this should then be left to the occupational physician. That position is quite unclear under Belgian labour law. It would seem that, in the light of the need for necessary or appropriate health and safety measures at the workplace in the context of Covid-19, a measurement of body temperature can hardly be excluded, in case sufficient measures for the protection of the employee’s personal integrity and the right to privacy are put in place.

Another question is whether the names of infected workers can be disclosed. The answer to this question is negative. The DPA is clear: ‘[b]y virtue of the principle of confidentiality (article 5.1(f) GDPR) and the principle of minimum data processing (article 5.1(c) GDPR), an employer may not simply disclose the names of the persons concerned within the company. Proportionality is also an important principle to be observed when processing personal data (medical or otherwise).’ At the same time, the advice of the DPA is nuanced: ‘[i]n order to, for example, prevent further spread the employer may, of course, inform other employees of a contamination, without mentioning the identity of the person(s) involved.’ In our view, in practice, however, this could mean that one knows de facto who is involved. This will sometimes be unavoidable in a smaller organisation or unit. But the question is whether such information can then still be considered lawfully distributed. The question will be more complicated once contact tracing becomes fully operational.

6. Measures to sustain employment in the exit scenario

As part of the Belgian exit scenario, contact tracing started on 11 May 2020. The Belgian Government initially decided not to use a smartphone app but to do this with real contact tracing officials. Public authorities, however, seem to have changed their minds, wanting to combine a Corona-app and professional “contact tracers”, recruited by the Government, who will be operating from an official call-centre and call everyone who has been in close contact with someone infected with Covid-19. The contact tracers receive information about Covid-19 cases from the medical practitioners within the country. In order to comply with the provisions of the GDPR, the Belgian Government adopted a Royal Decree to justify the elaboration of the database that collects the personal data of people infected with Covid-19. This Royal Decree contains an exhaustive list that clarifies what kinds of personal data can be collected. ¹⁸ The Decree, furthermore, points out that these personal data may only be processed for purposes of contact tracing and scientific research. Regarding the first purpose, the contact call-centre is only allowed to use the database to contact individuals who are (suspected of being) infected with Covid-19. The regions in Belgium also adopted Decrees to further regulate contact tracing. For instance, the Flemish parliament adopted a Decree which allows the Flemish Government to assign an external partner that carries out this contact tracing under strict conditions. ¹⁹ The contact tracer may only contact the individual who is or might be infected with Covid-19 in order to know who has been in contact with that individual during the period of 48 hours before the start of the symptoms and up to 14 days prior to the consultation or test on Covid-19. In addition, these contact tracers may contact these people to propose tailor-made recommendations on the basis of information provided to them. If necessary, they will be encouraged to take self-isolation measures and they will receive the above-mentioned quarantine attestation. ²⁰

The Belgian Government also took measures to reboot the economy and, in particular, to boost employment in the critical sectors of the labour market. ²¹ Firstly, these measures consist of increasing the hours of voluntary overtime allowed to 220 hours between 1 April 2020 and 30 June 2020. These hours of overtime are not taken into account for the average weekly working hours and the provisions on overtime pay do not apply. Secondly, the restrictions on the use of successive fixed-term contracts have been dismantled in relation to the critical sectors for a period of three months. One condition has been put in place. The fixed-term employment contract has to last at least 7 days. Thirdly, the Government has eased the restrictions on the hiring-out of employees to employers in critical sectors. The special regulation offers some protection to the employee in this regard. The employee has to give his/her permission and both the employer and user enterprise are jointly liable for the payment of the social security contributions and wages of the employee. In addition, these wages may not be lower than those received by employees performing the same functions in the user’s business. Other measures which have been taken, for instance, include the unrestricted use of student work during the period of 1 April until 30 June 2020. ²²

Lastly, the Belgian Government has advanced legislation on a specific scheme of parental leave, ‘coronavirus leave’, which does not only apply to employees but also to self-employed workers. This measure aims to relieve parents who have to take care of their children, in particular for as long as the schools remain closed. Coronavirus leave is meant to remain available until 30 September 2020.