Returning from lockdown to the workplace

CAN COMPANIES ORDER EMPLOYEES WORKING REMOTELY DUE TO COVID-19 TO RETURN TO THE WORKPLACE?

Homeworking remains recommended to the extent possible. However, if homeworking is not possible, companies need to take appropriate action to ensure maximum compliance with the rule of social distancing, in particular maintaining a distance of 1.5 metres between each person and/or providing at least an equivalent level of protection.

In both cases, as long as companies comply with social distancing rules and take specific health and safety measures, they can ask employees working from home due to COVID-19 to return to the workplace.

CAN EMPLOYERS CONDUCT TEMPERATURE SCREENING OF EMPLOYEES?

No legislation has been passed in Belgium in this respect. However, different authorities have stated their positions (which are not always aligned and have changed from time to time):

(i) The Federal Ministry of Employment

While the Ministry remains extremely critical of temperature tests (using words such as "doubtful usefulness" and "many false results"), likening temperature taking to a medical act and reiterating that, in principle, employers are prohibited from carrying out such tests, it nevertheless acknowledges that these tests "can be accepted for the duration of the crisis period". The Employment Ministry draws a parallel between temperature tests and screening tests under a company's alcohol and drug prevention policy, and considers that if temperature tests are introduced, this must be provided for in the work regulations. This therefore entails revising the work regulations according to the normal procedure.

Temperature tests:

• can only be used preventively, to check whether employees are fit for work;
• must, for this purpose, be adequate, relevant and not excessive;
• may only be carried out if employees agree in accordance with the legal provisions in force; and
• must not involve discrimination between employees.

(ii) The Belgian Data Protection Authority (BDPA):

The BDPA’s position can be summarised as follows:

• Importantly: the temperature of a natural person is personal data; moreover, a person's temperature is a special category of personal data (the body temperature reading is personal data relating to health).
• For temperature checks without recording body temperatures: GDPR does not apply; if the temperature check entails a direct reading and is not recorded in a file, it is not classed as a processing activity under GDPR.
• For temperature checks where body temperatures are recorded: GDPR applies; if employers record further data (e.g. stating the reasons for denying employees access to the workplace), then this is a clear processing activity under GDPR.
• Electronic temperature checks and using sophisticated equipment are not authorised. According to the BDPA, using sophisticated digital fever scanners, thermal cameras or other automated systems that measure body temperature is classed as processing health data and is not authorised.

(iii) The Order of Physicians

According to the Order, “taking a temperature with a forehead thermometer is a daily practice and is not just a medical procedure; people without medical training can also perform this procedure”.

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In light of the above, we think employers can conduct temperature tests on their employees using a simple device that shows whether or not employees have a fever (but without generating exact data), subject to two conditions:

• No processing of this personal data.
• Including these tests in the work regulations, following the usual procedure.

Note that, in these circumstances, there is no requirement for a qualified physician to conduct the test.

SHOULD EMPLOYEES WEAR MASKS IN THE WORKPLACE?

Where the 1.5 metre rule cannot be enforced and all necessary organisational and collective protective measures have been taken, the wearing of masks can be used as an additional measure, in conjunction with other preventive measures.

If masks become mandatory, employers must advise employees on the level of protection the masks offer and on how to use and maintain them.

SHOULD EMPLOYERS PROVIDE EMPLOYEES WITH PROTECTIVE EQUIPMENT (E.G. MASKS, GLOVES, DISINFECTANT)

There is no statutory regulation regarding protective equipment.

In our view, employers are obliged to ensure a safe and healthy workplace and therefore must provide employees with the necessary equipment. To that end, employers must carry out a risk analysis, possibly involving external providers that specialise in health and safety at work, to identify specific risks (e.g. the presence of several companies/third parties in the same building).

WHAT ARE THE MAIN LIMITATIONS ON EMPLOYERS WHEN BRINGING EMPLOYEES BACK TO THE OFFICE?

Employers must provide safe and healthy working conditions and should consult on the measures taken regarding coronavirus with the consultative bodies (e.g. Works Council and Committee for Prevention and Protection at Work). Employers must guarantee a social distance of 1.5 metres between each person. If that is not possible, employees should be provided with appropriate protection measures, which could include masks.