Belgium: A Guide to Prevent Collapse During Corona Crisis
Alex Margolin| Nov 01, 2020
We have gathered information on what measures you can take as an employer in Belgium to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.
November 1, 2020
Starting Sunday, November 1, 2020, Belgium will go into a 6-week lockdown and is scheduled to end December 13, 2020. All non-essential establishments will be closed, however, delivery and store pick-up will be possible. Hairdressers, beauticians, and any profession that would require close contact with another individual will also be closed.
March 23, 2020
If an employee is not able to work due to not being able to adjust their hours or cannot work remotely, employees are able to apply for temporary unemployment benefits on the grounds of force majeure. The employee would receive up to 70% of their regular monthly salary with a cap of 2.754,76 EUR per month
This also applies to employees whose company is unable to maintain its normal working arrangements for economical reasons.
For companies that temporarily lay off their white-collar employees, a specific procedure for recognition as a company in difficulty must be made.
Self-Employed Social Security Contributions
Self-employed persons will be able to request to postpone the payment of Belgian social security contributions, without penalties. This will not affect the benefits, the self-employed person will still receive them.
The application for this measure needs to be done towards the social insurance fund and needs to be done by the following deadlines:
- Before March 31, 2020 in order to obtain a deferral of payment for the first and second quarters of 2020
- Before June 15, 2020 in order to benefit from a deferral of payment for the second quarter of 2020.
Employer and Employee Rights & Obligations Q&A
Source: Baker McKenzie
1. Are employees obliged to disclose themselves as a “risk-factor” to the employer?
- According to Belgian law, employees are obliged to refrain from causing any damage to the safety of the employer, other employees or third parties.
- Therefore, on the basis of said statutory provision and the good faith performance of their employment contract, employees could reasonably be considered obliged to disclose themselves as a “risk-factor”. However, the employer should clearly inform the employees when they are considered to be a “risk-factor”.
2. Can the employer demand employees to disclose themselves as being a “risk-factor”?
- The employer can, and is actually recommended to do so, in light of its statutory obligation to ensure a safe and healthy workplace. As indicated in the first answer, this requires that the employer also sufficiently clearly informs the employees about what is considered to be a “risk-factor”.
3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employer?
- Although it is probably more effective / constructive to just ‘encourage’ employees to do so, there seems to be no strict employment law-based obstacle why the employer could not issue such instruction (e.g., as a policy), given that the employer is in charge of securing health and safety at the work place.
4. Can employees refuse to come to work?
- In principle, not – because employees are contractually held to perform their work.
- However, employees who are considered to fall in a risk category (i.e., 60+, health conditions) and who for that reason consider themselves to be unable to come to the work place should be encouraged to inform their employer. If homeworking would practically not be possible, the alternative is for the employee to have an appointment with the company physician (via telephone), following which the company physician will decide whether the employee is unable to work or not. If the physician decides the employee is not able to work, the employee will not be entitled to salary but should be entitled to unemployment allowances (for force majeure) under the current guidelines of the Unemployment Office.
5. Can employees refuse to attend meetings or to travel?
- As part of his general obligation to keep the work place safe and healthy, the employer is obliged to take all necessary prevention measures. This includes cancellation of travels, specifically to risk areas, and organizing meetings in a manner which limits health risk to the attendees (e.g., conference calls). Failure to take such precautionary measures exposes the employer to possible civil liability, and even criminal liability (although admittedly rather theoretical).
- As a result, and by way of exception to the employer’s instruction right, the employee has the right to refuse to attend the meeting or to travel, if it could reasonably be considered to put his/her health at risk and/or would be in violation of mandatory governmental instructions. A detailed practical assessment might be required in this respect in certain situations.
- All official travel advice can be found on the following website: https://diplomatie.belgium.be/nl/Diensten/Op_reis_in_het_buitenland/reisadviezen.
6. Can the employer send employees on suspension from work?
- In the current context, Belgian employment law provides two main grounds for (justified) suspension, i.e., (i) force majeure, and (ii) for economic reasons (i.e., so-called economic unemployment).
- Force majeure is the situation in which the employer is in the absolute impossibility to employ the employees. This is evidently the case if the company is subject to a government instructed lockdown (e.g., restaurants) or if the supply of resources has been stopped due to the crisis (e.g., parts coming from China). It could possibly also be the case if given the nature of the work, the employer is in the absolute impossibility to conduct the activities in a (health) safe manner (e.g., large stores). The force majeure topic covers two aspects: on the one hand, there is the question whether the employer (or employee) can validly suspend the performance of the employment contract (in which case no salary is due). On the other hand, same concept is also relevant to determine if the employee is entitled to state unemployment allowances. With regard to this latter aspect, it will largely be up to the interpretation of the concept of force majeure by the Unemployment Office. The Unemployment Office seems quite, and increasingly, flexible in the current specific crisis context (i.e., the government seems to have instructed the Unemployment Office to be flexible on their interpretation in order to guarantee as many impacted employees as possible to benefit from unemployment allowances).
- As a general rule, a reduction of the work volume does not entitle the employer to suspend employment contracts unilaterally. An exception to this is the suspension ground of ‘absence of work for economic reasons’ (so-called ‘economic unemployment’), for which two separate regimes are in place respectively for blue-collar workers (permanent regime) and white-collar employees (i.e., a similar regime albeit subject to a prior recognition as ‘company in difficulty’ by the federal Ministry of Work). Employees will be entitled to unemployment allowances in these scenarios, subject to meeting certain conditions.
7. When is the employer forced to shut down its operations?
- Reference is made to the answer to question no. 6, as a forced shut down (i.e., a ‘lockdown’ as it is called these days) is a key example of a force majeure. For the purpose of entitlement to unemployment allowances, the Unemployment Office has very recently even indicated this qualification applies in case of partial lockdown (e.g., shops required to close in weekends).
8. Does the employer have the obligation to report infections occurring in the business to the health authorities?
- No such obligation exists for employers in Belgium.
- However, as part of its health and safety obligations, the employer should inform the (internal and external) prevention advisor in order to be advised on all health / safety prevention measures that need to be (additionally) taken in light of the infection case.
9. Can the employer require an employee to see a doctor?
- No. However, in a broad interpretation of the health and safety regulations, if an employee shows clear flu symptoms, the employer could ask the company physician to examine that employee. If the company physician decides to do so, the employee has to undergo the medical exam. In case the employee refuses the medical exam, access to the work place can be denied.
- However, the recommended approach is to ‘ask’ and/or ‘advise’ the employee to visit a physician.
10. If employees are sent on suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid?
- No. As a general rule under Belgian employment law, no salary is due if no work has been performed, except in case the law or the contract states otherwise (i.e., so-called guaranteed salary).
- Guaranteed salary will in the current context only be due during the initial 30 days of sick leave.
- As indicated in the answer to question no. 6, subject to certain conditions and formalities, the federal Unemployment Office will pay unemployment allowances in specific cases of force majeure and economic unemployment. As a result of a recent decision of the federal government, for the period until 30 June 2020, the amount of the unemployment allowances in both scenarios is increased from 65% to 70% of the (as the case may be, capped) salary.
- Most challenging situation when it comes to payment will be if the employer suspends the contract performance on the basis of force majeure, but in a situation not recognized as force majeure by the Unemployment Office. In such case, no salary and no unemployment allowances will be due. If so, employees risk to challenge the employer’s qualification of force majeure and could claim damages equal to the salary they would have earned. Such claim will eventually depend on whether the employer was in the specific health situation concerned and is actually reasonably unable to employ the employees.
- If employees have to work from home, salary will be due.
11. If kindergartens and schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long?
- No – As a general rule under Belgian employment law, no salary is due if no work has been performed, unless the law or the contract states otherwise (i.e., so-called guaranteed salary).
- The case of closed schools / kindergartens without other ‘solution’ for the children, could qualify as a ‘compelling reason’ for absence, i.e., a justified suspension ground set forth in the national CBA n° 45. This requires an “unforeseeable event, independent of the employment, which causes the urgent and necessary intervention by the employee and this to the extent that the performance of the employment contract makes this intervention impossible”. Given that the schools remain open for childcare, the (admittedly theoretical) question arises whether leave of absence for compelling reason could be applicable in the current context.
- This justification ground can be used for up to 10 working days per calendar year, and is non-remunerated.
For more general information see our Belgium payroll & employment law guide