Enforcement of CovidCheck in companies: What are the impacts for Employers?

The Law, approved on 18 October (hereinafter “the Law”), officially extends the amended law of 17 July 2020, on measures to combat the COVID-19 pandemic, until 18 December 2021.

Can the Employer choose whether to use the CovidCheck scheme within its company?

The Law extends the use of the CovidCheck scheme (hereinafter “CovidCheck”) to companies, which may now, if they wish, require their employees to present the following at the entrance to their premises:

• Either a complete vaccination certificate;
• Or a certificate showing a negative COVID-19 test result[1];
• Or a COVID-19 recovery certificate.

It should be noted that the entry into force of the aforementioned Law ends the use of self-tests, which will no longer be accepted.

In addition to the possibility offered to companies to use CovidCheck or not, they may also decide to only partially use it (for example, for meetings, conferences, holiday events, etc.).

In the event that CovidCheck is applied, health measures such as those implemented until now (such as social distancing or mask-wearing) may be stopped.

This may seem like a good thing, given the long months of distancing that employees have suffered due to the pandemic.

But in practice, it raises many questions. We have decided to answer the most common ones:

What are the sanctions for the Employer if it fails to comply with the notification and entry screening requirements if Covid-Check is implemented?

The Law expressly states that if, after the implementation of CovidCheck, the Employer does not comply with the obligations arising therefrom, the Employer may be ordered to pay an administrative fine of a maximum amount of €6,000. The question raised is whether the Law is relevant in practice.

The Legislator effectively imposes a performance obligation for the screening and compliance with CovidCheck, punishable with a sanction for the Employer, but does not define the outlines of the desired screening. From a practical point of view, it is therefore difficult to understand how the screening will be implemented and what mechanisms are to be put in place. Are specific people needed to carry out the screening? In what forms can the Employer gather the screening data in order to monitor its workplace without violating the rules usually provided for in labour law that favour privacy and avoid screening that is too invasive?

All these questions are now being asked without any firm position taken in this area. Each Employer must therefore analyse its situation on a case-by-case basis and adapt it according to its activity, its premises, the number of employees, the needs of its employees and the need for physical presence on the premises.

It should also be noted that the implementation of the CovidCheck system has been possible since 19 October, but the aforementioned sanctions will only be enforced from 1 November 2021.

What are the sanctions for the employee, should he/she refuse to submit to the CovidCheck?

The answer is quite simple: The Law does not say anything on this subject. This could lead to many problematic situations for Employers in the coming weeks.

What should an employer do if one or more employees refuse to submit to the aforementioned screening?

As the Law does not provide for anything on this subject and no case law or doctrine exists in this matter at this time, caution must be exercised.

Of course, the Employer has the power to sanction its employees, ranging from a simple warning to dismissal. But as a reminder, all sanction measures must be serious and justified.

Could a simple refusal by an employee to submit to the CovidCheck lead to a sanction by the Employer?

It is impossible to be cautious and simplify this response, because each problematic situation with an employee must be studied on a case-by-case basis and carefully. The principle of non-discrimination between employees and the Employer's obligation towards its employees’ health and safety must be balanced.

Some of the following examples could clearly lead to a sanction:

• An employee forces his/her way through the screening in place and enters the premises;
• An employee refuses to be tested (when the tests are paid for by the Employer); or
• An employee refuses to be tested and to work remotely while solutions to return to the premises have been proposed to him/her;

On the contrary, it would be difficult to sanction in any way whatsoever an employee refusing screening imposed by the Employer and who proposes to work from home instead.

It should be noted that an employee who considers him/herself discriminated against and wrongly sanctioned could refer the matter to the Courts for his/her loss to be compensated, depending on the sanction applied to him/her. As mentioned above, each situation must be analysed on a case-by-case basis and it should be noted that the courts usually work to primarily guarantee the rights of employees.

As a result, in reading the Law, Employers must exercise vigilance and genuine caution before implementing the CovidCheck and weigh the pros and consof implementing this system, compared to the existing one, which is primarily related to social distancing.

[1] A NAAT test certified by a medical analysis laboratory, valid for 72 hours, or a SARS-CoV-2 rapid antigen test, valid for 48 hours.