Obligations and checks relating to foreign workers and self-employed individuals extended to all sectors and industries

In August 2020, as part of measures to reduce the spread of COVID-19, the government imposed a new record-keeping obligation and compliance check on certain employers and users which temporarily rely on foreign employees or self-employed individuals (for further details please see “COVID-19: new record-keeping obligation and compliance check relating to foreign workers and self-employed individuals“). Initially, these obligations were limited to employers active in the construction, cleaning, meat, agriculture and horticulture sectors. However, the government has extended these obligations to all sectors and industries. In addition, foreign workers and self-employed individuals must, under certain circumstances, provide evidence of a negative COVID-19 test.

Which employers and users are subject to these obligations?

The obligations apply to employers and users which:

• are independent in the sector in which they are active; and
• temporarily rely on workers or self-employed individuals living or residing abroad for the performance of work in Belgium.

Which obligations apply to these employers and users?

Record-keeping obligation
The modalities of the record-keeping obligation have not changed (for further details please see “COVID-19: new record-keeping obligation and compliance check relating to foreign workers and self-employed individuals“).

Which pieces of data must be collected and stored?
Employers or users which temporarily rely on foreign workers or self-employed individuals must collect certain data, such as:

• general identification data (ie, their first name, last name, date of birth, national or BIS number and place of residence during the performance of the work in Belgium);
• a phone number on which the worker or self-employed individual can be contacted; and
• a list of individuals with whom the worker or self-employed individual works, to the extent that it applies.

This data can be used only for purposes relating to the fight against the spread of COVID-19, including tracing and investigating clusters located at the same address.

How should employers or users store this data?
Employers or users should store this data in a register, which should be made available to all of the services responsible for preventing COVID-19’s further spread and the services in charge of compliance with the COVID-19 measures, such as the social inspection services.

This data should be stored from the start of each employee’s work in Belgium up to and including the 14th day following their work termination.

On the expiry of that period, this data must be destroyed.

The record-keeping obligation does not apply to:

• work that is for private purposes only;
• frontier workers (eg, a worker living in France who works in Belgium and frequently returns to their home country); and
• employees or self-employed individuals who stay in Belgium for less than 48 hours.

Passenger locator form compliance check
Employers and users must also verify whether, where legally required, the foreign worker or self-employed individual has duly completed the passenger locator form. The completed passenger locator form assesses whether an individual must be quarantined.

This check must be made prior to the start of the work activities in Belgium.

If a foreign worker or self-employed individual cannot provide evidence that the passenger locator form has been completed, the employer or user should ensure that the form is completed in full and on time. This obligation does not apply if the work performed by these foreign workers or self-employed individuals is for private purposes only.

New: negative COVID-19 test
Foreign workers or self-employed individuals living abroad who temporarily travel to Belgium must provide evidence of a negative COVID-19 test. The test must be taken at the earliest 72 hours prior to the start of the work activities in Belgium.

This obligation applies only to workers and self-employed individuals who will stay in Belgium for at least 48 hours. Frontier workers are also out of scope.

The negative COVID-19 test result can be checked by:

• the prevention adviser or company physician;
• the services responsible for preventing COVID-19’s further spread; and
• the services in charge of compliance with the COVID-19 measures.

Penalties

Non-compliance with these extended and broadened obligations may be subject to a Level 2 penalty based on Article 238 of the Social Criminal Code (ie, an administrative fine ranging between €200 and €2,000 or a criminal fine ranging between €400 and €4,000). The fine is multiplied by the number of employees involved.

Recommendation

Employers and users should ask foreign workers and self-employed individuals for all of the relevant data and proceed with a passenger locator form compliance check prior to the start of employment in Belgium. Further, foreign workers and self-employed individuals must submit a negative COVID-19 test.

Written by

• Emma Van Caenegem

  Counsel

• Esther Soetens

  Counsel