Additional measures Corona – What about my posted workers in Belgium?

What if, for safety reasons, you do not allow your employees to start work on site?

Out of fear that your employees will become infected, you forbid them to go to work. What are the consequences of this under employment law?

Under Belgian labour law, you are obliged to provide your employees with ‘work’. Therefore, you cannot decide unilaterally – without this being imposed by the government – that your employees are not allowed to work.
However, the article of Belgian labour law that provides for this obligation to provide work is not ‘mandatory’ Belgian labour law.Therefore, it is not criminally sanctioned and does not apply to the employment relationship between the seconded employee and yourself, the seconding employer, who provides services in Belgium.

In conclusion, if you preventively ‘send’ your employees ‘home’, the labour law of the country of origin will determine how this situation should be regulated. More specifically, the labour law of the sending state will determine whether the wages must continue to be paid (even if no work perfomances are provided) and/or whether there is a right to an income replacement benefit (unemployment benefit).

Do not forget to check in your secondment appendix which agreements you have made about the repatriation of your employees to their country of residence and which supplements, if any, you still owe.
In any case, the seconded workers cannot claim unemployment benefits in Belgium because they are not socially insured here.

Please note that the Belgian welfare legislation (safety, hygiene and health at work) applies to you as a foreign employer in full. This means that you have the obligation to safeguard the health of your employees and to take the necessary preventive measures to limit the risk of contamination on the site/workplace.

These precautionary measures have been tightened as of 18 March: you must be able to guarantee that your employees can keep a distance of 1.5 metres from each other. This may cause problems when lifting heavy materials (works to be carried out in pairs) or the transport to and from the site/workplace. Of course there are many other situations imaginable where this can occur (at site meetings, lunch breaks, tools that are shared, etc.). In times of corona you therefore have a special health and hygiene obligation that applies to you as a foreign company in full. If you cannot guarantee this ‘social distance’ at your site/workplace, you are obliged to stop the works. Otherwise you run the risk of heavy fines.

What if your client closes the work site and suspends the work for an indefinite period of time? Or what if the Belgian government decides in the coming days to a complete lockdown?

In this case, too, you must fall back on the labour law and social safety net of your country of origin.

For the employees in Belgium who cannot return to their country of origin if the Belgian government would decide to make a lockdown, other things may also play a role. The extension of residence may have consequences for the social security or tax situation of the employee in question. Just think of a possible extension of the A1 certificate. We will continue to monitor the situation for you.

Publication date: 19 March 2020