Returning from green, orange or red: what should/can I do as an employer?

There are many uncertainties concerning how employers should or can react towards employees returning from (colored) risk areas, as determined by the FPS Foreign Affairs (see here). In principle, these rules apply between citizens and the government, but they do of course have immediate consequences for the employment relationship. 

We currently recommend the following pragmatic approach:

• Employers cannot force employees to declare where they travel during their private time. However, an employer can voluntarily enquire about the holiday destination of employees planning to go abroad. In most cases, employees will probably have no problem sharing this information with HR. 
• When the employee returns from holiday, the employer then verifies whether the employee’s holiday destination is green, orange or red. 
  
  • Green: there is no problem, the employee returns to work or continues to work remotely as before.
  • Red: the government requires quarantine and a test. This means that an employer is not entitled to allow the employee on the workplace, that the employee remains in quarantine for 14 days and that he visits his attending physician for a test. 
    
    • Either the employee is not able to work: with a COVID-19 medical certificate (incapacity for work), he is entitled to guaranteed salary for thirty days and then, if necessary, sickness benefits. 
    • Or the employee is fit for work but must be quarantined. In this case, he receives a COVID-19 medical certificate (quarantine) from his physician, which he delivers to the employer to justify his absence. If he is able to work remotely, he will receive salary. If working remotely is not possible, he is in principle not entitled to salary. However, he can claim temporary unemployment benefits for reasons of force majeure. 
  • Orange: the government calls for quarantine and test, but does not make them compulsory as in red. It is therefore unclear to employers what they should do.
    • In principle, an employer cannot refuse an employee to have access to the workplace until it has been established that the employee is not able to work by means of a certificate issued by an attending physician. If an employer refuses access, the employee is absent on the grounds of a unilateral preventive decision by the employer. In that case, the employee cannot claim temporary unemployment. Hence, there could be a risk that the employee would claim compensation equal to the loss of salary due to work refusal. We consider the chance that an employee will start legal proceedings rather small. 
    • On the other hand, an employer must as general obligation under the Well Being Act, take all necessary and preventive measures against the spread of COVID-19. In our opinion, this means that you could instruct your employees not to come to work when they return from an orange area, but to first visit their attending physician. Depending on the outcome of such visit, the employee will then be entitled to (guaranteed) salary or temporary unemployment benefits (see the same consequences as red). Make clear agreements and instructions before the employees leave on holiday, seek advice from your internal and/or external health and safety services and consult with your health and safety committee, trade union delegation, or directly with the employees. 

In the event of new instructions from public authorities, it will be necessary to consider whether this approach can continue to apply or whether it needs to be adapted. 

Would you like to know more about the relaunch of your activities and the organization of your HR in COVID-19? Visit our webpage: Relance na de lock-down – Aandachtspunten voor HR or Relance après le lockdown – Points d’attention pour les RH.