November 28, 2021

What are the recurring covid issues in business?

Vaccination, social inspection and the return of workers from abroad, these are the issues with which employers are regularly confronted in the context of the covid crisis.

Amaury Arnould.

The coronavirus has been part of our life and that of the company for almost two years. It sparks a lot of ink and panics many human resources managers, which is an opportunity to take stock of three increasingly recurring issues.

What can the employer do at the time of the third dose?

In Belgian law, it is still not currently allowed for an employer to require their workers to be vaccinated, and this since the Belgian authorities have not made the vaccine against Covid-19 mandatory.

It follows that the employer cannot sanction a (future) worker because he would refuse to be vaccinated (or even because he would refuse to say if he was vaccinated / to show proof of his vaccination). On the other hand, it is possible to sanction the worker who refuses to respect the social distancing measures.

An employer cannot reward a worker for agreeing to be vaccinated.

Conversely, the employer cannot reward the worker either having agreed to be vaccinated (for example, by granting a bonus). If it is not possible to impose vaccination, the employer can, however, encourage workers to get vaccinated. In this regard, the FPS Employment recommends that complete information be provided to workers (concerning the advantages of vaccination, but also its risks).

Social inspection checks

Since the start of the pandemic, social inspectors monitor compliance with preventive measures against Covid-19 within companies. Controls are carried out at different levels by the ONEM, the Control of social laws, the Control of well-being at work, the ONSS, the INAMI and the INASTI.

The activity report relating to the first two quadrimesters of the year 2021 draws up various observations. The number of investigations into compliance with the provisions relating to temporary unemployment Covid-19 is particularly high (over 37,000).

The Control of well-being at work systematically checks compliance with the obligation of teleworking, social distancing (if teleworking is not possible) and preventative measures appropriate to ensure a maximum level of protection.

In the field of teleworking for example, 9,098 employers were checked, 889 received a warning and 63 pro justitia were drawn up. At present, more and more investigations are handled at the criminal level, in cooperation with the Labor Auditor.

If a worker has to quarantine himself because of his behavior, the performance of the employment contract is suspended and no wages are due for the days in question.

Concerning moonlighting control during the coronavirus crisis, the sectors in which the greatest number of infringements were observed are as follows: removals, car washes, catering, construction, electronics and transport (the the most frequent offenses are those relating to Dimona, part-time work, unemployment regulations, foreign labor and Limosa).

Return from abroad

At the time of the reopening of borders with more and more countries, the question arises whether it is possible to sanction a worker who would return directly to work after a stay in the red zone.

Everyone is of course obliged to respect the measures set by the Belgian government in this area (and in particular the instructions which are communicated after having completed the Passenger Locator Form).

Depending on the specific case, an employer who becomes aware of the fact that a member of his staff has violated the applicable rules could take a Disciplinary measure against him (insofar as it is provided for in the work regulations), or even dismiss him if it turns out that this worker has endangered the health of third parties.

For the surplus, whether a worker needs to quarantine because of their behavior (for example, in the event of leaving on vacation in the red zone with full knowledge of the facts), the performance of the employment contract is suspended and no salary is due for the days in question.

Amaury Arnould
Avocat Claeys & Engels