End of the vigilance phase in the workplace as from 11 may 2022: back to business as usual?

Starting from 11 May 2022, several obligations regarding preventing Covid-19’s spread in the workplace will no longer apply.

In particular, the specific prevention measures that employers had to take in accordance with the so-called “Generic Guide” in the event of a pandemic will no longer apply. From 11 May 2022, employers will only have to comply with the preventive measures classically provided for in the Codex on Well-being at Work, as was the case before the pandemic.

Moreover, as we informed you in our 25 January 2021 newsflash, the occupational doctor’s prerogatives were enhanced during the Covid-19 pandemic. By Royal Decree of 15 May 2022, the government has decided to also abolish these prerogatives from 11 May 2022.

What does this mean in practice for your company?

Since 11 March 2022, the epidemic state of emergency for the Covid-19 pandemic was lifted.

In conformity with Article I.2-27 of the Codex on Well-being at Work, as introduced by the Royal Decree of 21 February 2022 on prevention measures at work in the event of an epidemic or pandemic (see our newsflash), employers have still been obliged to take the basic level of protection during the so-called “vigilance phase” for a period of two months following the end of the epidemic state of emergency, i.e. until 11 May 2022.

The basic level of protection applying during this vigilance phase is described in the latest edition of the Generic Guide (the “Generic Guide to Working Safely in the Event of an Epidemic or Pandemic”), which is no longer only limited to the Covid-19 pandemic, and includes, amongst other things, the now well-known principles of social distancing, ventilation, telework, applying hygiene measures, and wearing a mask.

Since 11 May 2022 the employer is thus no longer obliged to apply these measures in the workplace. Only the “classic” prevention measures regarding security and safety in the workplace, as provided for by the Codex on Well-Being at Work, apply. Also, and as a reminder, telework is since 5 March 2022 no longer recommended for combatting the Covid-19 pandemic.

In addition, the occupational doctor loses an important part of the prerogatives that he/she was entrusted with during the pandemic, which means the occupational doctor is no longer:

• responsible for identifying workers’ high-risk contacts in specific situations;
• allowed to provide quarantine certificates to any worker whom he/she considers to be a high-risk contact; workers will have to obtain such certificates from 11 May 2022 from their general practitioner;
• allowed to refer specific categories of workers for testing;
• allowed to conduct testing on workers himself/herself.

As a consequence of the repeal of these prerogatives, the occupational doctor will have to resume his/her usual tasks regarding health surveillance and will no longer be allowed to temporarily postpone those usual tasks by invoking the Covid-19 pandemic.

In this context, we recommend that each employer updates its current risk analysis and assesses whether within its organisation specific prevention measures linked to Covid-19 may still be recommended (even though not mandatory) to ensure general well-being at work (for example, in the event of an increased risk of infection). The Health & Safety Committee (or, in its absence, the trade union delegation) should be consulted about this updated risk analysis and about the employer’s intention to abolish (or not) the specific prevention measures starting from 11 May 2022. All employees should also be informed.

Employers should also consider introducing a general framework of structural telework if their employees are still (partly) working from home. In any event, working from home on a structural basis, now that Covid-19 teleworking is no longer recommended, requires the mandatory conclusion of an addendum to the employment contract.

If you would like more information, then ALTIUS’ Employment Team is available to provide further guidance regarding all well-being-related obligations.