Extended competences for occupational doctors in the fight against COVID-19 lead to additional obligations for employers

Occupational doctors play an important role in the fight against the spread of the coronavirus within the company and in contact tracing at the workplace. After all, they are familiar with the risks and preventive measures that apply within the company. 

The actual Well-being at work legislation does contain a number of general provisions that give the occupational doctor a role in the prevention of contagious diseases at work. But the rules on contact tracing, quarantine and testing were not part of it. 

That is why this RD was approved, which allows the rules to be worked out in more detail and temporarily assigns occupational doctors a number of additional, specific tasks that are necessary to be able to combat the coronapandemic as efficiently as possible at the work place. 

Since it concerns temporary measures, it was decided to make a separate Royal Decree and not to integrate it into the Code on well-being at work. These measures take temporarily priority over the normal assignments and tasks of the occupational doctor within the framework of health surveillance.

The occupational doctors are assigned the following specific tasks:

• The occupational doctor is responsible for detecting high-risk contacts within the company (both in the private and the public sector).

  If an occupational doctor is informed of the fact that an employee who was effectively present in the company during the days preceding the test or the occurrence of the symptoms, tested positive for COVID-19, he will have to trace the high-risk contacts of that employee at work. These contacts may include co-workers, a supervisor, the employer or other persons with whom the employee has had contact in the context of his work activities (e.g. temporary workers or clients). 

  The occupational doctor may become aware of an employee's COVID-19-positive condition in several ways, e.g. by being contacted by the contact tracing services or directly by the employee himself, or by the employer (being informed by the employee).

  Even without such a positive test result within the company, the occupational doctor may consider that there are clear indications of a corona outbreak in the company, e.g. as a result of contact with third parties who appear to be infected (e.g. customers, visitors, (sub)contractors, etc.). 

• The occupational doctor can issue quarantine certificates to employees he considers to be high-risk contacts. This is the same certificate that can also be provided by the general practitioner. The occupational doctor must immediately inform the employer thereof and the employee must provide the certificate to the employer. If the employee is unable to telework, this certificate can also be used to apply for temporary unemployment benefits due to COVID-19 force majeure.

• Furthermore, in specific cases, the occupational doctor can refer employees who are physically present at work to take a COVID-19 test. This concerns, for example, employees whom he has identified as high-risk contacts or employees who need a negative test result in view of a professional journey abroad.

• Finally, in specific situations and if the occupational doctor considers it more appropriate than a referral (e.g. because the testing capacity is under pressure or a referral increases the risk of transmission of the infection because of the need to travel by public transport for the test), he can also administer a COVID-19 test himself (or under his responsibility). He reports the results of such a test to the competent authorities and to the general practitioner with the employee's consent. Systematic testing of all employees is not the intention. 

Obviously, in performing the above tasks, the occupational doctor will always have to take into account the guidelines of the competent authorities, in particular with regard to the testing strategy and the definition of a high-risk contact. 

In view of these additional, specific tasks and the time that will be spent on them, it is possible that certain other obligations will have to be (temporarily) suspended. One can think of the periodic health monitoring, reintegration assessments, etc. In consultation with the employer, the occupational doctor will determine which adjustments will be made to the health surveillance. Prior health assessments can never be suspended.

Some obligations rest on the employer and the employees as well. 

• The employer and the employees must cooperate fully with the occupational doctor and provide him with all necessary information (e.g. by reporting as soon as possible any contamination that could be relevant to prevent the spread of the coronavirus on the work floor, by identifying high-risk contacts at work). This concerns not only contamination of employees, but also of customers and (sub)contractors, if they are aware of it of course.

• The employer must comply with measures proposed by the occupational doctor as a result of the contact tracing or testing in order to limit the further spread of the coronavirus in the company. Such measures may include imposing quarantine for a high-risk contact. The employer must verify that the employee actually complies with the quarantine and does not carry out any work in the company. 

• The employer must check whether the preventive measures previously taken (e.g. hygiene, ventilation) and the risk analysis need to be adjusted. If so, he must seek the advice of the internal and external prevention advisers and consult with the CPPW, trade union delegation or employees in advance. 

• The employer has to take into account the possible changes in the health monitoring and inform the CPPW, the trade union delegation or the employees about it.

In addition, the new competences have an impact on the tariff arrangements. The tasks within the framework of contact tracing, issuing quarantine certificates and referring for testing fall in principle under the lump-sum minimum contribution (for smaller enterprises C- and D) or prevention units can be used for that (for larger enterprises A, B and C+). In principle, the performance of a COVID-19 test does not fall under this and can therefore be invoiced additionally (for larger companies, prevention units can also be used for this).

The Directorate-General for Supervision of Well-being at Work is competent for the monitoring of compliance with the new rules. A breach of the rules constitutes a breach of the Well-being at work regulations and is therefore punishable by an administrative fine of EUR 400 to EUR 4.000 or a criminal fine of EUR 800 to EUR 8.000. 

If the violation results in health damage for an employee, the sanctions could even go up to a prison sentence of six months to three years (although we assume that this will be likely theoretically) and/or a criminal fine of EUR 4.800 to 48.000 or an administrative fine of EUR 2.400 to 24.000.