October 17, 2021

Volume XI, Number 290

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Belgium – Your employees can’t work from home? Time for a certificate!

We were – as ever – maybe a little late to the party, but as of Monday 2 November, Belgium is in new lockdown, at least until 13 December.

Non-essential shops are closed and so-called “professions with direct contact” (beauticians, barbers) are prohibited from working.  Working from home is mandatory, unless this is “impossible due to the nature of the position of the employee or the continuity of the business, activities or services”. A similar exception is made for those employed in the frontline of essential services, such as medical staff, the police and certain parts of the food and energy sectors.

A novelty in comparison to the first lockdown is that employees who are required to go into work will now need a certificate from their employer (that they can carry with them) which states that working from home is not possible for them.

There are no specific formalities for the certificate, other than that it should identify the employer, confirm the necessity of the employee’s presence in the work place (referring to a Ministerial Decree of 28 October 2020 on urgent measures to limit the spread of the coronavirus COVID-19) and have the employee’s signature. The certificate does not have to justify the requirement to attend the workplace, merely evidence it. “Impossible” remains undefined and so there is likely to be continuing debate as to where the line lies between that and impracticable or inefficient or just undesirable. Issuing the certificate is not just a consent to come into the office if the employee wants, but a requirement to do so whether he wants or not. The issue of choice is therefore very largely taken out of the hands of the employee — it all depends on the nature of the work activity. The aim of the certification regime is to allow social inspectors to monitor observance more closely.

When employees do come into the work place, all the necessary measures should still be taken to ensure maximum compliance with the rules of social distancing, in particular maintaining a distance of 1.5 metres between all employees. Appropriate prevention measures should be taken in accordance with the “Generic Guide to Countering the Dispersion of COVID-19 at Work” which was updated recently.

Social Inspectors will be responsible for informing and assisting employers and employees about the measures, but equally for supervising compliance with the applicable obligations. Their powers will extend to fining employers whose employees are not working from home but are not in possession of the required certificate. The new government has announced that monitoring observance of the measures will be stricter this time around. It will therefore be sensible for Belgian employers to issue suitable communications to their staff as soon as possible, making clear the criteria which will determine when it will be seen as impossible to work from home and clearly stating that those who have not been favoured with the relevant certificate should not attend, even if they do actively wish to do so.

The Covid-19 checklist for employees just got a little longer: did I bring my mask, my hand sanitizer … and my certificate?

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 307
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About this Author

Marga Caproni Labour & Employment Attorney Squire Patton Boggs Brussels, Belgium
Partner

Marga Caproni is a partner in our Brussels office and leads the Labour & Employment team in Belgium. She is an experienced employment lawyer, who advises Belgian, European and US clients in both the private and public sector. Marga also has extensive experience in the area of workplace pensions and data privacy.

In employment law, she advises on individual and collective employment issues and has been actively involved in several national and international restructurings, as well as individual dismissal cases, on both sides of the table. She has a special focus on data privacy...

322 627-7620
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