Employees returning from risk zones: what to do?

The resumption of work of your employees returning from a holiday abroad may be somewhat disrupted. Depending on the zone (green, orange or red) in which your employee's travel destination is classified, the FPS Foreign Affairs may recommend or force your employee to place himself in quarantine on his return. What are the consequences of this for the employment contract?

What does the FPS Foreign Affairs have to say about this?

The FPS Foreign Affairs (https://diplomatie.belgium.be/en) daily updates the list of countries/regions where non-essential travel (such as tourism) is permitted (green zone), is permitted under conditions (orange zone) or is not permitted (red zone).

It also indicates, for each zone, the countries/regions of return for which the citizen is recommended or obliged to take certain measures after non-essential travel.

Specifically, when the traveller returns:

• from a green zone: he doesn't have to do anything specific,
• from an orange zone: he is recommended to undergo testing and to observe a 14 day quarantine period,
• from a red zone: he will be forced to undergo testing and to observe 14-day quarantine period.

What should you do if an employee returns from a risk zone?

Even though it is self-evident that your employee must behave like a responsible citizen, he is not obliged to inform you of his travel destination. This means that, as an employer you cannot oblige him to inform you of his holiday destination.

If this information should nevertheless be communicated to you, you should proceed as follows.

Your employee returns from a green zone

No quarantine can be imposed on an employee returning from a green zone. He will be able to resume work in a normal way.

Your employee returns from an orange zone

Nor can you impose a quarantine period on an employee who returns from an orange zone. Since, in this case, quarantine is only recommended, he may submit to it, but he is not obliged to do so.

If your employee decides to place himself in quarantine, he must inform you immediately of this.  Upon your request, he must also be able to provide you with a certificate of quarantine.

If your employee is unable to carry out his work because he has been placed in quarantine, his contract will be suspended due to force majeure. In principle, he will therefore be entitled to temporary unemployment benefits due to force majeure "COVID-19” payable by the ONEm/RVA.

In this context, the ONEm/RVA clarifies that benefits for temporary unemployment are only granted if your employee can present a certificate of quarantine from his doctor.

If an employee who has been placed in quarantine is still able to carry out his work, for example by teleworking, he will continue to receive his usual wages payable by you.

Your employee returns from a red zone

The employer has the right to deny an employee returning from a red zone access to his place of work. The latter is obliged to observe a quarantine period.

The quarantined employee must inform you immediately. Upon your request, he must also be able to provide you with a certificate of quarantine.

If your employee is unable to carry out his work because he has been placed in quarantine, his contract will be suspended due to force majeure. He will therefore be entitled to temporary unemployment benefits due to force majeure "COVID-19" payable by the ONEm/RVA.

In this context, the ONEm/RVA clarifies that benefits for temporary unemployment are only granted if your employee can present a certificate of quarantine from his doctor.

If an employee who has been placed in quarantine is still able to carry out his work, for example by teleworking, he will continue to receive his usual wages payable by you.

Please note! According to the FPS Employment and the ONEm/RVA, if your employee went to a destination that was already classified as a red zone at the moment of departure (unauthorized destination), he did not behave like a normally prudent person. Therefore, force majeure cannot be invoked as a reason to suspend performance of the employment contract for the period of compulsory quarantine. Your employee will therefore not be entitled to a temporary unemployment benefit from the ONEm/RVA. In this case, if the employee is unable to perform his employment contract (for example, because teleworking is not possible) or unable to make use of leave days or time off in lieu to cover the quarantine period, the performance of his contract will be suspended in the form of an authorised absence without pay on your account

The ONEm/RVA also specifies that it will carry out checks and refuse temporary unemployment or recover benefits subsequently if the conditions are not met (for example, if there is a travel ban at the time of departure).

Our advice

We strongly recommend that you ask your employees in a prior communication to inform you if they are returning from a destination classified in an orange or red zone. It is also advisable to inform them of the consequences for their return to work.

Sources: FPS Foreign Affairs Special Powers Decree no 37 of 24 June 2020 implementing Articles 2 and 5 of the Act of 27 March 2020 authorising the King to take measures in the fight against the spread of the coronavirus Covid-19 (II) to support the employees, Belgian Official Gazette of 3 July 2020 (2nd Ed.); FPS Employment, Labour and Social Dialogue;   FAQ ONEm/RVA.