Fraud and internal investigation
As the Coronavirus continues to spread, we receive more questions from our clients on the consequences for their workforce.
Apart from our general guidelines for HR, we have listed hereunder a practical FAQ:
Employers have a duty of care towards employees and are required to take steps to protect health and safety as far as practicable and provide a safe place of work for their employees (art. 20, 2° Employment Contracts Acts and art. 5 §1 Act on Wellbeing at Work). In light of this obligation, employers should carry out risk assessments, particularly in international organizations where staff travel regularly in the course of their work. Where a risk of employees potentially contracting the virus is identified, employers should consider what measures to take to control that risk, such as refusing access to infected employees, restricting certain travel arrangements, etc.
On a more basic level, the World Health Organization has issued guidelines for the public to minimize the spread of infection.
These measures may include:
No, this is not allowed under Belgian law. But based on the employer's duty to protect health and safety at work, the employer may consider to refuse access to the workplace in case of serious indications of infection, in order to avoid spreading of the virus in the company.
Yes, as a temporary safety measure when there are significant indications of health risks justifying this measure (e.g. return from risk area). This time may not be deducted from their paid vacation entitlement, unless the employee has given his/her explicit consent. It is recommended to issue a written statement to confirm that such measure cannot be considered as termination of employment (to avoid constructive dismissal).
Collective holiday (which applies to the entire company or a division) requires a specific procedure, including involvement of the works council, and should be included in the company’s works rules. This does not seem to be a workable option to cope with Covid-19.
No, this always requires the employee’s consent. Failure to comply with contractual obligations to pay employees in circumstances where they are available for work may lead to breach of contract (constructive dismissal) and/or payment of wages claims.
Given that fewer employees attending the workplace will naturally correspond to a reduction in the spread of infections, employers may consider facilitating (some categories of) employees to work from home or allowing them to work remotely where possible.
As the employer must comply with its obligations regarding workplace health and safety, employees may be forced to work from home where risks to employees cannot be avoided, especially when the individual employment contract or company’s homework policy provide such possibility. As a measure of prevention, the employer can already assess which functions might be suitable for homework. If the employer does not have a homework policy in place yet, it might be appropriate to implement such policy. Obviously, the employer must provide necessary tools to employees working from home to carry out their job (laptop, access to information and documents, etc.). An arrangement for costs associated with homework should be included in the homework policy.
Private trips, the employer cannot prohibit its employees to go to risk areas. It can however impose employees returning from risk areas to self-quarantine and work temporarily from home (especially when a homework policy exists and allows this).
Business trips, the employer can put in place restrictions on business travel as he considers appropriate at the moment and this is unlikely to be controversial as long as there is a sensible rationale for any restrictions (in particular areas for which the Ministry of Foreign Affairs has given a negative advice).
The employer may ask employees to undergo a medical examination (e.g. temperature check) when health and safety requires so (e.g. for employees returning from risk areas), but this would need to be with the company doctor and at the employer’s expense. The employer should best liaise with its internal and/or external health & safety provider.
The employer should be mindful that processing employee's health data is sensitive personal data and ensure he complies with its data protection obligations (the processing may be allowed under the exception of "public interest in the area of public health"). It may therefore be preferable to simply ask employees who do not feel well with cold or flu-like symptoms to stay at home.
An employee who needs to stay at home to care for his/her children (when no alternative is available) will not be entitled to temporary unemployment benefits. He/she might take up outstanding rights to unpaid leave for family reasons (maximum 10 days per year for a full time employee).
In principle, employees have the obligation to perform their employment contract and to comply with the reasonable instructions of the employer, insofar as reasonable.
Whether the refusal is reasonable should be assessed on a case-by-case basis and in light of the guidelines of the Belgian authorities (i.e. negative travel advice) and the development of the Covid-19 virus.
In case of an unreasonable refusal to work, the employer could consider this as an unjustified absence and (i) not pay salary for these days, (ii) consider this as serious cause for dismissal (if the refusal persists without any ground).
Infected employees must self-isolate and stay at home. Such absence will be considered as work incapacity for which guaranteed wages are paid during 1 week (blue-collar workers) or 1 month (white-collar employees), provided that the employee submits a medical certificate (normal procedures in case of absence for illness must be complied with). A medical certificate from a foreign doctor is valid.
If these employees are not ill (see previous question), they will not be entitled to guaranteed wages. However, such quarantine will be considered as Act of God (force majeure), which suspends the performance of the employment contract; under certain conditions, the employee may be entitled to an allowance from the Belgian Employment Office (RVA) because of temporary unemployment due to unforeseeable circumstances.
In the event of a lockdown imposed by the Belgian authorities, this will qualify as a case of force majeure justifying the suspension of the employees’ employment contract. Employers should in that case not pay any salary. Under certain conditions, employees could be entitled to temporary unemployment allowances from the National Employment Office. This requires that the Belgian government (RVA/ONEM) accepts that the situation qualifies for such temporary unemployment (which is currently the case; see link to government website in next question).
Some situations of substantial loss of business due to Covid-19 will qualify as Act of God and will be accepted as ground for temporary unemployment for economic reasons. The National Employment Office has issued a detailed instruction that sets out conditions and administrative formalities in Dutch and French.
As the situation develops, employers should act prudently and monitor government advice, as well as updates from the World Health Organization (WHO).
Useful links from the Belgian government (in Dutch or French):
Our dedicated Lydian team is ready to assist you with any questions you might have regarding the impact of the Coronavirus on your daily business.You can contact us with all your questions on email@example.com.
Fraud and internal investigation
Information Governance & Data Protection