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    Managing HR Through COVID-19

    A Practical Guide for Multinational Employers

    Prepared by Van Olmen & Wynant

    As at March 27, 2020

     

    Overview

    This publication will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    1. Good Practice Guidance giving high-level consideration;
    2. An Action Point Checklist drilling down into the detail; and
    3. Answers to Key Questions facing employers in Belgium.

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    This has been prepared by Van Olmen & Wynant and is published with their kind permission. With thanks to:

    Van Olmen & Wynant  |  Nicolas Simon  |  nicolas.simon@vow.be   |  www.vow.be

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1. Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO”) website, and check that the information they receive is factually correct.

    2. Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk. Employers should also keep in mind that as soon as the measures taken in the European Union by the employer involve the processing of personal data, the provisions of the General Data Protection Regulation (“GDPR“) must be respected.

    3. Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4. Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting. In order to cope with this potential issue, we suggest that, if a Q&A platform or similar is set up by the employer, contributions from employees on this platform should be anonymous.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5. If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6. One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1. Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis with the help of your prevention advisor (i.e., occupational physician) in order to determine the preventive measures that should be taken and to determine high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
    • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
    • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Favoring flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2. Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3. Update

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4. Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel. Since the tracking of personal travel will be considered as a treatment of personal data, provisions of the GDPR will have to be respected in that regard.
    • Encourage and invite staff to tell you if close family members with whom they share a house are travelling to infected areas. You cannot however force them to do so due to privacy reasons.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at March 27, 2020

    Please note that some of the guidance provided in this document (e.g., related to temporary unemployment or linked to the Ministerial Decree) is being updated daily by the Belgian authorities.

    1. What are an employer’s main legal obligations?

    The employer has an obligation to ensure that work is carried out in suitable conditions in light of the workers’ health and safety (art. 20, 2° of the Employment Agreement Act (“the Act“)).

    Besides this general obligation, the employer shall also take necessary measures to promote the well-being of workers in the performance of their work (art. 5 of the Act relating to the well-being of workers in the performance of their work).

    The employer may be assisted by its prevention advisor (i.e., occupational physician), who is notably the only person who is authorized to conduct potential medical examinations in the workplace, in order to determine the preventive measures that should be taken to ensure that the work is carried out in safe conditions, in accordance with the general principles explained above (art. 5) and on the basis of a risk analysis carried out by the prevention service at work.

    Please note that the employer can choose whether or not to follow these recommendations and has to inform the Health and Safety Committee of the measures taken, if any.

    The Ministerial Decree on Emergency Measures to Limit the Spread of the Coronavirus COVID-19, of March 23, 2020, states that employers can only continue their activities provided that they organize telework (e.g., working from home) for any function where this is possible, without exception (art. 2 of the Ministerial Decree). Moreover, this “possibility” should be considered widely. Therefore, if telework shall involve certain adaptations for employers, they should still be subject to this measure and will have to implement telework in order to avoid risk of penalties.

    Where telework is simply not possible for an employer, social distancing (1.5m of distance) must be scrupulously respected. This rule applies both in the exercise of the work and in the transport organized by the employer. If it is impossible for companies to comply with these obligations, they must close.

    These provisions do not apply to critical sectors and essential services (the Government has published a list of essential activities and sectors in the annex of the Ministerial Decree of  March 23, 2020). These employers will, however, have to ensure that the rules on social distancing are respected as much as possible (art. 2 of the Ministerial Decree).

    Finally, note also that it is strictly forbidden for an employer to discriminate against employees based on their health status (Act to combat certain forms of discrimination of  May 10, 2007). Less favorable treatment of an employee because of an infection should therefore be avoided (e.g., dismissal linked to the illness).

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal obligation to do so. However, such a plan is recommended in order to provide clarity and uniformity to the workers, especially if the employer has to organize telework or install security and social distancing measures according to the obligations set forth in the Ministerial Decree of March 23, 2020.

    As a reminder, employers can be assisted by their prevention advisor to obtain recommendations in that regard.

    Moreover, the World Health Organization, as relayed by the Belgian authorities, draws attention to a number of preventive measures that are best taken in the workplace to minimize the spread of the coronavirus:

    • Ensuring clean and hygienic workplaces (such as office surfaces, keyboards) by regularly disinfecting them;
    • Ensuring that workers practice good hand hygiene by providing disinfectants in visible areas;
    • Ensuring good respiratory hygiene in the workplace by using tissues when coughing or sneezing;
    • Informing workers that it is preferable that they do not come to the office if they have symptoms of illness such as fever and/or cough; and
    • Organizing telework as soon as practicable (see question 1).

    Finally, in the event of an outbreak, in order to prevent a worker who becomes ill at work from infecting other co-workers, Belgian authorities state that it is best to take the following measures:

    • If possible, provide a room in which a potentially sick person can be isolated when they cannot return home immediately on their own;
    • If mouth masks are available at work, it is advisable to have the sick worker wear such a mask after washing or disinfecting their hands. If there is no mouth mask available, ask the worker to cover their mouth and nose with a cloth or scarf;
    • Explicitly instruct your workers on the principles of good sneezing and coughing hygiene and ask them to wash their hands before and after helping the sick person; and
    • Disinfect the surfaces (desks, door handles, appliances used, etc.) with which the sick employee has been in contact. Coronavirus is inactivated by all commonly used disinfectants.

    3. What should a workplace COVID-19 response plan cover?

    As mentioned, there are no mandatory measures, since the plan is not a legal obligation. However, it is recommended that employers set up hygienic, social distancing and teleworking guidelines in such a plan (notably the guidelines described in question 2 above).

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix at the end of this page, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    As mentioned above (see question 1), employers can only continue their activities provided that they organize telework for any function where this is possible, without exception (art. 2 of the Ministerial Decree).

    Therefore, for those for whom teleworking is totally impossible or for those who are working in critical sectors and essential services (see the list of essential activities and sectors in the annex of the Ministerial Decree), it is theoretically not possible to direct all the employees to go home or to stay home, preventively, since the employer is still capable of providing work to its workers.

    However, an employer who suffers consequences from coronavirus in any way (e.g., financial consequences, organizational problems with the shift of workers, decreased workload) can start a procedure in order for its workers to benefit from temporary unemployment due to force majeure (nearly all coronavirus-related situations are now accepted as a situation of force majeure).

    This temporary unemployment will trigger the payment of an unemployment allowance (70% of the wage capped at €2,754.76 per month until June 30, 2020) to the workers by the National Employment Office (RVA/ONEM). The National Employment Office will add a supplement of €5.63 per day. However, the allowance will be reduced with a withholding tax of 26.75%.

    Moreover, if there is actually an outbreak, based on article 20 of the Act and on article 5 of the Act relating to the well-being of workers in the performance of their work, it is the duty of the employer to preserve the health and safety of employees and to send them back home or direct them to stay home and to start the procedure in order for the workers to benefit from the temporary unemployment due to force majeure.

    5. Can I direct an employee to see a doctor?

    You can invite a worker to go and see their general practitioner or the occupational physician, but you cannot force them to do so.

    However, if a worker refuses to see a doctor and shows signs of infection, it is possible for the employer, to send the worker home, if they are not teleworking of course, on the ground that they pose a serious risk to the others and that the employer has to ensure that the work is carried out in safe and healthy conditions (art. 20, 2° of the Act).

    If this decision is made, the employer can start the procedure for the worker to benefit from the system of temporary unemployment due to force majeure.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    If a worker or a teleworker becomes ill and they are not in temporary unemployment due to force majeure, they should get checked by a doctor and the normal rules for absence due to illness will apply. Therefore, the employer will have to pay the normal wage during the first month of the absence due to illness. After this period, the worker will receive a sickness allowance paid by the National Institute for Health and Disability Insurance (“NIHDI“) through organizations called “mutuality” to which each worker must be affiliated (60% of the worker’s gross salary limited to a maximum of €146.98 per day).

    However, if the worker becomes ill when they are temporary unemployed due to force majeure, the worker will have to turn immediately to their mutuality in order to receive the sickness allowance detailed above.

    If the worker is not sick and if it is possible for the employer to provide work, taking into account the rules of social distancing or through teleworking, the obligation to pay wages and provide other employment-related entitlements remains unaltered.

    If it is totally impossible for the employer to provide work or telework, the employer can start the procedure in order for its healthy workers to benefit from the system of temporary unemployment due to force majeure.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    The employer has the right, within certain limits, to unilaterally modify the working conditions of workers, such as their workplace.

    It is therefore possible for an employer to move certain workers to other areas as long as this move remains reasonable. However, if the “move” is seen as a unilateral modification of the employment contract, the employment contract will be terminated on behalf of the employer (constructive dismissal).

    For example, moving certain staff to another part of the building or in another building on the same working site is reasonable, whereas moving workers to another site in another city could be considered as a unilateral change in the employment contract. However, due to the actual circumstances, these changes could be considered as necessary sanitary measures and accepted more easily. In order to cope with this potential risk, it is recommended that the employer reach a mutual written agreement with the worker in that regard.

    Please note, however, that if a worker is ill or has potentially been exposed to a colleague who has been diagnosed with coronavirus and shows signs of infection, the employer will be obliged to send these workers home due to the obligation to ensure that the work is carried out in suitable conditions (art. 20, 2° of the Act).

    8. Can I direct my employees to report suspected cases of COVID-19?

    It is permissible as long as the employer remains reasonable and does not take a final decision based on these reports (as a reminder it is strictly forbidden for an employer to discriminate against employees based on their health status, even a potential one – see question 1).

    Therefore, if an employee is reporting a suspected colleague infected with COVID-19, you may invite this suspected ill person to see their general practitioner or the occupational physician in order to be checked. However, you cannot force them to do so (see question 5 above) and to start the procedure in order for the worker to benefit from the system of temporary unemployment due to force majeure.

    However, if this person refuses to see a doctor and shows signs of contamination or illness, it is possible to send them home, because they pose a serious risk (art. 20, 2° of the Act).

    Regarding suspicions of an employee over their own situation, in the event of an outbreak, it is reasonable to ask an employee to report if they suspect whether they have COVID-19 and to invite them to see a doctor (see question 5 above) and to start the procedure in order for the worker to benefit from the system of temporary unemployment due to force majeure as well.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    If there is objectively an outbreak and the employer does not send employees home or allow for teleworking, the employer could be in violation of its obligation to ensure that the work is carried out in conditions suitable from the point of view of the workers’ health and safety (art. 20, 2° of the Act) and subject to judicial procedures and/or penalties.

    However, the Ministerial Decree on Emergency Measures to Limit the Spread of the Coronavirus COVID-19, of March 23, 2020, authorizes non-essential companies to continue their activities only if they organize telework for any function where this is possible without exception (art. 2 of the Ministerial Decree).

    Where teleworking is not possible, social distancing (1.5m of distance) must be scrupulously respected. This rule applies both in the exercise of the work and in the transport organized by the employer. If it is impossible for companies to comply with these obligations, they must close (unless they belong to critical sectors and essential services, see question 1 above).

    10. Can I screen employees and customers before allowing them to enter the workplace?

    In principle, no. However, in Belgium, this question falls under the protection of employees against biological agents (Book 7 of the Belgian Workplace Well Being Code).

    In that regard, an employer who wants to introduce a measure like health monitoring (e.g., systematically taking the temperature of the employees) should involve the prevention advisor (i.e., occupational physician), as only a medical professional is allowed to perform medical acts (see also question 1). Moreover, the Health and Safety Committee must also be informed and can give its advice on such measures.

    However, note that the employer has to take necessary measures to ensure that workers who occupy (i) a safety position, (ii) a position of vigilance or (iii) who carry out an activity with a defined risk, are subject to compulsory health surveillance and to ensure that such health surveillance is carried out in accordance with the Workplace Wellness Code (art. I.4 onwards of the Workplace Wellness Code).

    With the help of the prevention advisor (i.e., occupational physician), it is therefore possible to call the workers in the above-mentioned three categories for a health assessment.

    Furthermore, asking employees to fill in a health declaration form in order to see if they possibly present a contamination risk is restricted by the GDPR, as health data are seen as sensitive data and strict processing rules will apply.

    In general, such processing would require the explicit written consent of the data subject and the mentioning of a specific purpose. However, written consent is permitted for a worker in a subordinate relationship only if there is a benefit for the worker.

    Since this written consent could therefore raise concerns, we also advise employers to base the processing of such sensitive data on the need for the employer to comply with its obligations to ensure that the work is carried out in conditions suitable from the point of view of the workers’ health and safety (art. 20, 2° of the Act).

    Moreover, Belgium laid down additional rules for the processing of sensitive data: e.g., the identification of the categories of persons who have access to the data and the requirement for these persons to be bound by a duty of professional confidentiality.

    If an employer screens employees without respecting this procedure, the employees could invoke their right to privacy in order to refuse the monitoring or to claim damages for violation of their right to privacy if the monitoring has taken place against their will.

    CONTACT:  Van Olmen & Wynant  | Nicolas Simon  |  nicolas.simon@vow.be  |  www.vow.be

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary or forbidden. We would like however to underline that non-essential travel from Belgium is now prohibited (art. 7 of the Ministerial Decree). In any case, it is advisable to check on the authorities’ website whether the travel is permissible.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies, such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by Van Olmen & Wynant provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.