Employers must provide employees present in workplace with document to certify this fact

Introduction
Teleworking is compulsory unless employees' role or business continuity does not allow for it
Bars, restaurants and non-essential shops forced to close

Introduction

Belgium is in lockdown for the second time. The new Ministerial Decree of 1 November 2020 stipulates that, until 13 December 2020, all workers must telework. However, an exception applies when either an employee's role or the continuity of business operations, activities and services does not allow for teleworking. In such cases, employers must provide the worker with a certificate or other supporting document attesting that their presence in the workplace is needed. The ability to arrange for occasions on which workers could return to the company premises, which was provided for in the Ministerial Decree of 18 October 2020, has been deleted.

In addition to bars and restaurants, non-essential shops have now also been forced to close during this lockdown period.

Teleworking is compulsory unless employees' role or business continuity does not allow for it

The new ministerial decree now explicitly stipulates that teleworking is compulsory.

However, two exceptions are provided for – namely:

• if an employee's role does not allow for teleworking; or
• if the continuity of business operations, activities and the provision of services does not allow for teleworking.

This rule also applies to employees of essential or vital companies, listed in an annex to the ministerial decree. However, it might be easier for essential companies than non-essential companies to demonstrate that the continuity of business or activities requires the presence of certain employees.

If a worker is covered by one of the exceptions, their employer must provide them with a certificate or other supporting document attesting that their presence at the workplace is needed.

On the basis of the current legal texts, there is no official template document that should be used in this respect. Any written document attesting to the need of an employee's presence at the workplace will do. As the text of the ministerial decree stipulates that employers must 'confirm' that an employee is needed in the workplace, employers are arguably not obliged to explain this decision in the written document. Employees must carry such a document with them.

The minister of internal affairs has already announced that inspections will be organised. Companies that require the presence of certain workers in their workplace for one of the two reasons set out above should provide these workers with a certificate as soon as possible.

If work is organised at the company premises, such work must comply with the rules on social distancing and the Ministry of Employment's generic guide and sector guides. An updated version of the generic guide was published on the Employment Ministry's website on 30 October 2020.

However, for essential or vital companies, the rules on social distancing must be respected only 'as far as possible'.

Bars, restaurants and non-essential shops forced to close

While bars and restaurants have been closed since 19 October 2020, they can offer takeaway meals until 10:00pm each day.

Hotels may remain open, but their restaurants must close.

The additional lockdown measures now provide that the following companies must also close:

• all shops, except for those selling essential goods (eg, food stores, animal food stores, shops for hygiene products, pharmacies, newspaper stores, book stores, petrol stations (and fuel suppliers), DIY stores, garden centres and flower shops). However, shops that must close may still deliver goods to their customers or have their customers collect pre-ordered goods in the open air (eg, at the shop's doorstep); and
• all companies and organisations belonging to the cultural, festive, recreational, sports and events sectors.

For further information on this topic please contact Phillipe De Wulf or Esther Soetens at ALTIUS by telephone (+32 2 426 1414) or email (philippe.dewulf@altius.com or esther.soetens@altius.com). The ALTIUS website can be accessed at www.altius.com.