Back to the (pre-pandemic) future … but not for employers?

Back to the (pre-pandemic) future … but not for employers?
April 5, 2022

Even though telework is no longer mandatory or recommended and almost all Covid-19 prevention measures in shops, restaurants and public life in general have been removed, employers should still take certain prevention measures in the workplace to guarantee that their employees can work safely during the current stage of the Covid-19 pandemic. Indeed, a new Article I.2-27 has been inserted in the Code for Well-being at Work regarding special prevention measures in the event of an epidemic or pandemic in general.

These special prevention measures, which have been worked out in a new edition of the Generic Guide, vary depending on the severity of the epidemic or pandemic. Therefore, 3 phases have been introduced: the “vigilance phase”, the “intervention phase” and the “critical phase”. For the current Covid-19 pandemic, we are still in the “vigilance phase”, which runs until 11 May 2022 at the earliest.

1. New article in the Code for Well-being at Work

A Royal Decree of 21 February 2022 has introduced a new Article I.2-27 into the Code for Well-being at Work regarding special prevention measures in the event of an epidemic or pandemic. This article thus has a broader scope than the current Covid-19 pandemic only, and can also apply in the event of other epidemics or pandemics in the future.

The main idea of this new article is that employers should take in time the necessary special prevention measures in the workplace in the event of an epidemic or pandemic.

2. Introduction of 3 phases

The special prevention measures that employers must take, vary depending on the severeness of the epidemic or pandemic. Therefore, 3 phases have been introduced (which differ from the phases provided by the ‘corona barometer’) to measure the situation’s severeness:

  • The “vigilance phase”

This first phase provides measures to control the spread of an infection. It includes the basic level of protection in the event of an epidemic or pandemic. This phase is automatic: it applies as soon as the Federal government declares an epidemic or pandemic and ends 2 months after the end of this epidemic or pandemic.

For the Covid-19 pandemic, we are still in this phase. The Federal government decided on 11 March 2022 to end the ‘epidemic state of emergency’. However, for two months from this date, i.e. until 11 May 2022, this vigilance phase still applies and so employers must still take a number of preventive measures (see point 4 below).

  • The “intervention phase”

This second phase provides measures to control a (threatening) outbreak and/or to limit the spread of infection, including cluster management. This phase is activated:

  • within the company: by the employer, following advice from the company doctor, when there is an increased circulation of the infection and/or a (threatened) outbreak in the company;
  • in all the companies in a sector: by a protocol concluded by the competent joint committee(s), when there is an increased circulation of the infection and/or (threatening) outbreaks in the sector concerned;
  • in all or certain companies or for certain activities: by the competent authority when there is an increased circulation of the infection in (certain parts of) the country.
  • The “critical phase” 

This third phase provides measures for containing a (widespread) epidemic or pandemic and for avoiding a (full or partial) lockdown or closure of the company/companies. This phase is activated:

  • within the company: by the employer, following advice from the company doctor, when there is an outbreak and/or a highly increased circulation of the infection in the company;
  • in all the companies in a sector: by a protocol concluded by the competent joint committee(s), in the event of outbreaks and/or a highly increased circulation of the infection in the sector concerned;
  • in all or certain companies or for certain activities: by the competent authority, in the event of a highly increased circulation of the infection in (certain parts of) the country.

3. Generic Guide for working safely during an epidemic or pandemic

The specific prevention measures to be taken by employers during the different phases of an epidemic or pandemic have been worked out in a new edition of the Generic Guide, which now has a general scope, and so is not limited to only the Covid-19 pandemic. This “Generic Guide to Working Safely in the Event of an Epidemic or Pandemic” takes into account the nature and specific characteristics of the infection and the severity of the epidemic or pandemic.

The Generic Guide may be supplemented at sectoral level by sector-specific measures, following an agreement between the social partners in the sector.

The Generic Guide and the sectoral supplements are published on the website of the FPS Employment Service, which can be found here (in Dutch) and here (in French).

4. Current obligations for all employers

Given that the “epidemic state of emergency” has no longer applied since 11 March 2022, and the “vigilance phase” now applies for a period of two months following the end of this “epidemic state of emergency”, employers are still obliged, at least until 11 May 2022, to take the necessary prevention measures in accordance with the new Generic Guide.

Taking into account the rules of social dialogue and the results of the risk analysis, employers must therefore still take the appropriate special prevention measures adapted to the specific working conditions and work context.

During this “vigilance phase”, there is, for example, still the requirement to guarantee social distancing as much as possible. If social distancing is not possible, then it is recommended to wear face masks. Furthermore, employers are recommended to provide sufficient ventilation and to organise lunchrooms/canteens in such a way that the number of people sitting at the same table is limited (to, for example, 4 or 6 individuals).

Written by

  • Esther Soetens

    Counsel

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