COVID-19 vaccination and testing in Belgium - employment law perspective

The employer can always raise awareness and inform his employees of the benefits of a COVID-19 vaccination. The employer also has the obligation to allow his employees to take necessary leave during working hours in order to get vaccinated and to record the time spent doing so as working time. This could encourage vaccination among his employees. 

However, an employer cannot provide a financial incentive to employees. He cannot treat employees who do not wish to be vaccinated differently than those that do since this could be considered health-related and direct discrimination.  The Federal Public Service for Employment stated that the employer is not allowed to condition the granting of a non-recurring result-related benefit (e.g. a bonus) to employees for the achievement of a certain vaccination rate in the company, as this would imply the unauthorised processing of personal data (i.e. the vaccination status of employees).

Employers are not obliged to offer their employees the opportunity to be vaccinated against COVID-19.  

However, COVID-19 was recently added to the list of "biological agents" listed in the Belgian Well-being at Work Code, which is a transposition of EU Directive 2020/739 of 3 June 2020.  According to the Well-being at Work Code, if an employer's risk analysis reveals that employees are exposed or likely to be exposed to biological agents (e.g. COVID-19) in the workplace, the employer has the obligation to give them the opportunity to be vaccinated if they are not immune and if an effective vaccine exists and is available.

An employer can ask employees whether they have been vaccinated or not, but employees are entirely free to decide whether or not they want to share this information with their employer. The employer cannot compel or pressure them to answer this question or undertake to verify their vaccination status. Furthermore, information on the vaccination status of employees can never be processed or stored by the employer. 

No. Since vaccination status is health data, employees do not have a duty to inform the employer of their vaccination status. They are entirely free to decide whether or not to share this information with their employer. 

No, employers cannot make vaccination against COVID-19 compulsory.  As a result, having a vaccination cannot be a condition of employment.

In Belgium, the general rule is that the employer cannot require employees to undergo any vaccinations. However, there is an exception to this general rule where an employer can impose certain vaccinations (e.g. vaccination against Hepatitis B) on employees in certain limited sectors and for specific employees listed in the law (e.g. medical sector workers). However, in this specific case, COVID-19 vaccinations have not yet been made mandatory, not even in these specific sectors. 

Yes, employees can refuse to be vaccinated since there is no current obligation for employees to be vaccinated against COVID-19. At the moment, an employee is not legally obliged to give a reason for refusal to be vaccinated. 

The employer cannot forbid non-vaccinated employees from entering or returning to the workplace.  This could be a violation of the discrimination law and could open the employer to liability. To avoid discrimination, unvaccinated employees cannot be treated any differently than vaccinated employees. This means that unvaccinated workers cannot be the target of prevention measures that are more strict than the measures imposed on vaccinated employees. Furthermore, the employer will have to implement prevention measures following governmental guidelines, even though a portion of his staff is vaccinated.  

No. Any distinction made on the basis of the testing or vaccination status of employees may be discriminatory and is therefore prohibited. This information is in principle also private and cannot be requested or verified. In this sense, the landlord will not always know the vaccination status of employees.

No, an employer must treat all persons performing professional activities in the workplace (e.g. full employees, temporary employees, trainees, third-party employees, etc.) in the same way. The general rule is that employers are not allowed to ask employees or third parties for proof of their fitness to work. 

Belgium has not implemented the European Digital Coronacertificate in the framework of work relations. 

In principle, an external party can ask employees whether or not they have been vaccinated. However, access to an external party's event cannot be made dependent on employee vaccination status. Employers must see to it that no difference in treatment is made between employees based on vaccination status. Proof of vaccination status cannot be requested.  However, this right is nuanced since from the 1 October 2021 dance clubs, restaurants and organisers of indoor events for more than 500 people or outdoor events for more than 750 people will be able to ask for a COVID Safe Ticket at the entrance. The regions still must decide on the use of the COVID Safe Ticket at other events.

An occupational physician can perform COVID tests or arrange COVID tests for workers who must travel abroad for business reasons to a destination that requires a negative test before entry. 

Proof of vaccination is not required to enter Belgium. Everyone who travels to Belgium by plane, boat, train or bus from a country outside the EU or Schengen area, or individuals returning to Belgium after staying abroad for more than 48 hours must fill in the Passenger Location Form (PLF) within 48 hours before their arrival to Belgium. Based on your answers, officials will assess whether you pose a high risk of infection. If you are determined to be a high risk, you must go into quarantine and get tested. Persons do not have to fill in this form if they are travelling to Belgium as part of a professional trip and staying in Belgium for less than 48 hours.

The employer cannot oblige the employee to travel for professional purposes if this implies that the employee who does not wish to be vaccinated or tested would be forced to get vaccinated or tested. Employees must consent to vaccination or testing. 

The occupational physician can refer employees, who must travel for professional reasons, to undergo a COVID test. Again, a test can only be taken on voluntary basis. 

However, if business travel is part of the job description, the vaccination requirement that makes professional travel impossible could constitute force majeure. The general rule is: if an employer, for reasons of force majeure, is unable to employ his personnel, the employer can then place his personnel in temporary unemployment. This means that in the case of necessary business travel, it must first be determined if the employee, who is unwilling to be tested or vaccinated, is able to carry out this function in another way (e.g. working from Belgium).

Discussions are underway about making vaccinations against COVID-19 mandatory for all caregivers in the health sector (e.g. those working in retirement centres, hospitals, etc.). Furthermore, as of 1 October 2021, wearing a mask in the workplace will no longer be mandatory, except for certain sectors (e.g. medical contact professions, public transportation, beauty sector, etc.) or regions (e.g. Brussels).

Since systematic testing of employees for infection or immunity to COVID-19 is generally prohibited, this cannot become a mandatary condition for employment. 

Although testing is not mandatory, the employer may voluntarily decide to purchase self-tests with the intention of using them for employees. However, within the company, the occupational physician must be the one who determines which employees are eligible for testing and which testing strategy will be followed (i.e. the type of test, frequency, duration, etc.). Therefore, the employer cannot choose how and when the self-tests will be used (nor impose their use). 

An employee can never be compelled to undergo a COVID-19 test. The occupational physician, or the medical personal under his responsibility, will perform the COVID tests with the employee’s consent. The occupational physician will also determine the frequency of the testing. 

The employee has no legal obligation to share the outcome of a positive COVID-19 test with an employer. However, in case of a positive COVID-19 test result, the employee will be obliged to stay at home in quarantine according to government-prescribed measures and their obligation to consider the safety of colleagues under the Well-Being at Work Code. Additionally, if the occupational physician conducted the test, he will be aware of the test result. In case of a positive test result, the physician will issue a quarantine certificate to the employee concerned. 

Employees cannot be compelled to undergo a COVID test. Therefore, this cannot become a mandatory condition of employment. Employees can always refuse to undergo a COVID test. 

No. As a general rule, an employer must treat all persons performing professional activities at his workplace (i.e. full employees, temporary employees, trainees, third-party employees, etc.) the same way.  Therefore, an employer cannot assign different duties to non-tested employees if they are not considered high-risk.

However, if the company doctor has issued a quarantine certificate to certain employees, special rules regarding the work they are permitted to do may apply during quarantine. The employer must then ensure that employees comply with the quarantine and any special measures and rules concerning work.