Coronavirus: impact for your HR practice?

The coronavirus epidemic that started in China is now spreading over Europe. Various measures have been taken by the public authorities in order to contain the spread of this virus. The consequences of this epidemic are however not limited to health aspects, but can also affect the operational activities of Belgian companies. As a result of the massive suspension of activities in China, many companies experience difficulties in supply, and therefore in production and operations.

The purpose of this newsletter is to highlight the measures that may or should be taken by Belgian companies impacted by this epidemic, given the potential contamination of employees or a decline in activities linked to the Chinese and global economic context.

1. Can an employer refuse an employee access to the workplace?

It is employer’s responsibility to monitor and assess health risks and, if necessary, to take action. It is therefore important to contact the occupational doctor to discuss on the possible preventive measures.

However, only the authorities can decide to place an employee in quarantine. If an employee has returned from an affected area and has not been placed in quarantine, the employer can not refuse access to the workplace and must pay him/her the entire salary. This could indeed be considered as a constructive dismissal.

The situation is different when the employee shows symptoms at workplace. It is then advisable to refer him/her to the occupational doctor and examine whether other measures are necessary to prevent contamination within the company.

2. Can an employee work from home (even in absence of a teleworking policy)? 

Employees are entitled to occasional teleworking in the case of force majeure, i.e. inability for employees to carry out their work at their usual workplace due to unforeseen circumstances beyond their control. Deadly viruses, such as the coronavirus, meet those conditions. It is, however, necessary that the nature of the work or specific activities carried out by the employee are compatible with teleworking.

The employer may accept or refuse the employee’s request for occasional teleworking. If it is accepted, it is necessary for the employer and the employee to agree on a number of terms, such as the equipment needed for occasional teleworking and technical support, possible coverage by the employer of the costs related to occasional teleworking, etc. Those terms may already have been provided for in the work rules or in a company’s collective bargaining agreement.

3. What measures should be taken if the company temporarily cannot employ employees (e.g. fall in production due to shortages in materials)?

Following a communication released by the current Belgian Employment Minister, companies affected by the epidemic can invoke the temporary unemployment system due to force majeure.

This unemployment system consists in the temporary suspension of employment contracts and of the payment of employees’ remuneration. During this suspension period, the employees receive a – capped – replacement income paid by the National Employment Office (“ONEM/RVA”).

Temporary unemployment due to force majeure is subject to a number of conditions: (i) it must be a sudden and unforeseeable event; (ii) the facts must occur involuntarily and without any fault on the part of the employer and the employee; (iii) the performance of the employment contract is totally impossible due to the force majeure; (iv) the incapacity for work must be of a temporary nature; 
(v) the employer must comply with his administrative obligations towards the National Employment Office; and (vi) unemployment applies to both blue-collar and white-collar workers.

In addition to the above-mentioned conditions, it will be necessary for the company to take the following steps with the National Employment Office:

  • The employer must make an electronic declaration as soon as possible to the National Employment Office, mentioning “coronavirus” as the reason for force majeure. 
  • The employer must then submit a written request for recognition of the force majeure. This request must include detailed explanations on the link between the coronavirus and the force majeure, the expected duration of unemployment (provisionally at the latest until 31 March 2020) and the identity of the employees concerned. 
4. Can an employer also have recourse to temporary unemployment due to force majeure in the case of a decrease in the number of customers (e.g. an airline company)?

Companies affected by a decrease in customers will instead resort to temporary unemployment for economic reasons for their blue-collar workers, as confirmed by the National Employment Office.

For white-collar workers, temporary unemployment for economic reasons may be invoked by companies that already meet the preliminary conditions for the introduction of temporary unemployment for economic reasons for employees, i.e.:

  • The company must fall under the scope of application of the Law of 5 December 1968 on the collective bargaining agreements and joint committees; 
  • The use of temporary unemployment is provided in a sector or company’s collective bargaining agreement or an approved company’s plan; and
  • The company is in difficulty as a result of a reduction in turnover, production or orders of at least 10% or the company is recognised as a company in difficulty by the Minister for Employment on the basis of unforeseeable circumstances leading to a substantial reduction in turnover, production or orders over a short period of time.

If those conditions are not yet met, it will still be possible for a company to apply to the Minister of Employment to be recognised as a company in difficulty.

5. Does an employer have to pay guaranteed salary to a quarantined employee?
  • It has been confirmed by the National Employment Office that an employer may have recourse to temporary unemployment due to force majeure for an employee in quarantine. In such a case, the employer does not have to pay guaranteed salary. The situation is different if your employee provides you with a medical certificate confirming his/her incapacity. In this case, the company must pay guaranteed salary to a white collar worker for one month, to a blue collar worker for seven days. After this period, the employee will then receive allowances from the health insurance.