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Coronavirus employment law update

Latest employment law updates from around the globe. Keep up to date with the most recent changes each government makes during the COVID-19 crisis.

Country by country update

  1. What is the Belgian Government's response to protecting workers as a result of the coronavirus outbreak? 
As of Wednesday, March 18, 2020, the legislator has taken some measures to protect citizens, such as closing certain businesses like bars, cafes, restaurants, discotheques and non-food shops, banning all cultural and sport-related activities and regulating other specific activities. In essence, the legislator has divided the private sector into business and activities which are essential and those which are not essential (the list can be found in the Ministerial Decrees - MD's). For essential businesses, the employer must, to the extent possible, make use of home-teleworking and must make sure the employees who come to work are protected to the utmost on the work floor, including by introducing social distancing measures. For non-essential businesses, (i) a specific  mandatory home-teleworking regime has been put in place for all job functions where it is possible; for job functions where (ii) home-teleworking is impossible, strict social distancing measures have been enacted (minimum 1.5m between each person). Companies labelled as non-essential where neither home-teleworking, nor social distancing measures are possible (iii) must close. These measures will remain applicable until April 19, 2020 (with the possibility of further extension).
 
Following the new regulations, all contractual workers whose contract is totally or partially suspended because of these decisions can be granted temporary unemployment allowances for ‘force majeure’ or 'resulting from economic reasons' until April 5, 2020. (Although some measures have been extended beyond April 5 – at present until April 19 – the extension of these measures has not yet been enacted at the moment this article was published, but we can expect that they are going to be extended too.)
 
Examples of 'force majeure' are workers whose contract is suspended because their employer stopped activities due to the general closure measures (e.g. they were suppliers of those industries) or because their activity depended on external suppliers which stopped their activities because of the COVID-19 crisis; these workers are eligible for temporary unemployment allowances. Also, workers who are quarantined by foreign authorities or whose flight back to Belgium is cancelled because of the pandemic are entitled to temporary allowances for ‘force majeure’.
 
In addition, an employer who, due to a significant drop in their turnover, production, customer base or orders due to the coronavirus, is temporarily unable to offer work to their employees may, under certain conditions, take advantage of the system of 'temporary unemployment for economic reasons'.
 
However, the National Unemployment Office (RVA/ONEM) states that even if the lack of work is due to economic circumstances and not to 'force majeure', it is advisable to introduce the request on the basis of the simplified (new) scheme for temporary unemployment due to 'force majeure' (FAQ RVA/ONEM – March 27, 2020). Of course, the lack of work must be related to the COVID-19 crisis.
 
The procedure of requesting temporary unemployment allowances has been simplified (electronic only), and the amount of all allowances for 'force majeure' has been raised from 65% to 70% of the salary, capped at €2,794 gross per month, until June 30, 2020. As such, employees receive a daily gross allowance between €55.59 (minimum) and €74.17 (maximum). Employees who are made temporarily unemployed due to 'force majeure' (reason 'coronavirus') will also receive a supplement of €5.63 gross per day, payable by the National Unemployment Office, in addition to the unemployment benefit.
 
Furthermore, the government also made some decisions to help companies in need. The social security authorities for salaried workers (NSSO) will grant payment delays to employers facing financial difficulties related to the crisis. These payment plans cover the first and second quarter of 2020. This measure is subject to a special request towards the NSSO.
 
Certain support measures were also set up for self-employed workers who are experiencing financial difficulties as a result of the crisis (most of them are subject to a special request and to certain conditions):
  • The deferral of the payment of social security contributions and the waiving of surcharges;
  • Reduction of provisional social security contributions;
  • Exemption from social security contributions;
  • Self-employed workers who find it necessary to interrupt or stop work because of the COVID-19 crisis will be able to stop the payment of social security contributions, while retaining a number of rights.
 
  1. Is an employer allowed/obliged to pay a supplement to the unemployment benefits?
Under the regime of temporary unemployment due to 'force majeure', there is currently no legal obligation to pay a supplement to the unemployment benefit. However, the employer is free to grant such a supplement voluntarily, provided that they do not discriminate between employees.
 
Under the regime of temporary unemployment for economic reasons, the employer is in some scenarios obliged to pay a supplement on top of the unemployment benefit for each day not worked. The amount is either provided for in a sectoral collective bargaining agreement (CBA) or, failing this, in a company CBA/company agreement.
 
In its most recent interim administrative instructions (dated March 20, 2020), the NSSO confirmed that the  supplement mentioned above, regardless of whether it concerns a situation of economic unemployment or 'force majeure', is exempted from social security contributions. However, the NSSO emphasized the following condition: the sum of the unemployment benefits and the supplement to be paid by the employer may not result in the employee receiving a net amount higher than the amount (s)he would receive by working normally.
Please note that a supplement to the unemployment benefits will be taxed at the normal tax rates and withholding tax rates, i.e. the same as applicable to the regular income. Moreover, this additional supplement will be added up with the other taxable professional income to determine the final tax.
 
 
  1. What considerations should employers take into account when allowing employees to work from home?
Structural and occasional teleworking is regulated by Belgian law. The employer and the employee must agree on several matters, such as the moments of availability of the teleworking employee, the technical material made available by the employer to the employee, as well as possible reimbursement of costs.
 
The Ministerial Decree of March 18, 2020 introduces the concept of ‘home-teleworking’, which is a concept of compulsory telework that technically did not yet exist in Belgian law. The current regulation introducing home-teleworking does not specify whether modalities need to be determined between parties; we, however, strongly suggest putting in place an employer's notice with some rules to be obeyed during the home-teleworking (such as confidentiality at home, availability of the employee during the day, the possible reimbursement of costs, etc.) as well as for the employer to adapt some internal policies (e.g. the privacy policy stating the changes operated during full-time home-teleworking). Special attention needs to be given to insurance policies, especially industrial accident insurance.
 
Employees should be reminded that during telework they should perform their duties/function as usual. The employer may as such ask the employees concerned to be available during normal office hours. Employers are reminded that – based on the employment law Act of July 3, 1978 – they have the obligation to provide the work tools, so that during this ‘telework at home’, the employer should in principle provide all the necessary equipment (including computer equipment) or provide compensation if the worker uses their personal equipment.
 
Whether a reimbursement of other home-teleworking costs is compulsory is debatable; if any compensation is granted by the employer, it can be made on a lump sum basis bearing in mind that the National Social Security Office generally accepts the exemption of fixed telework expenses up to 10% of the remuneration earned while teleworking.
 
It is possible that the legal framework for this specific form of telework will be further developed by legislation in the coming days (not enacted yet at the moment this article was published).

 
  1. Working from home: will employers continue to pay employees who work from home?
Employees who work from home are not affected with respect to their salary-related rights and are paid the full salary by their current employer, plus teleworking cost allowances if agreed with the employer (not mandatory for this new kind of teleworking).

 
  1. What should employers do when employees cannot work from home and their place of work may have to be temporarily closed?
 For functions that cannot be performed from home and when performing them from the usual workplace is also made impossible (because social distancing and safety considerations cannot be respected), the employer will have to close down the premises.
 
If a 'force majeure' kind of situation occurs, temporary unemployment allowances can be requested.
 
If economic reasons are involved, the employer can start a process to invoke ‘temporary unemployment for economic reasons’ and ask for temporary unemployment allowances.
 
Eventually, if none of these situations are encountered and the employer wants to close the premises by themselves just as a preventive measure, no unemployment allowances can be applied for. In this situation, it is advised to conclude an addendum to the employment contract with the agreement of both parties to suspend the employment contract. Under Belgian law, it is indeed an obligation of the employer to provide the employee with work and salary, and any unilateral modification without a 'force majeure' type of reason is not permitted and could lead to constructive dismissal.

 
  1. In case teleworking is not possible, can the employer oblige the employee to take vacation or working time reduction (RTT/ADV)?
 Under Belgian law, the employer is not allowed to impose vacation days. The decision to take holidays is a decision taken by mutual consent. The employer, however, has the obligation to make sure the employee can take his/her holidays.
 
Furthermore, in case of unemployment for 'force majeure' and if vacation days have been planned by the employee, the holidays will be suspended to the benefit of unemployment benefits.

The Belgian RTT/ADV regime is very specific, as these days have to be granted at the end of a specific reference period; if the employee still has RTT/ADV days at the end of the reference period (in many cases one calendar year) and the end of the reference period is approaching, the employer may consider requiring the employee to take RTT/ADV days.

 
  1. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
 Employees who must stay home to look after children can ask for occasional teleworking, even if the employer can refuse. However, home-teleworking has become mandatory in certain scenarios from March 18 until April 5 (19), 2020 (see questions 1 and 3), which would allow one to watch their children while teleworking.
Employees who, as a result of the suspension of classes in schools, stay at home only to care for their children, cannot for this reason be temporarily unemployed for reasons of 'force majeure'.

It is only if it is clearly proven that there was no childcare and that the parent had no alternative, that temporary unemployment due to 'force majeure' could be applied for or occasional teleworking (as care in schools is only provided for children whose parents work in the health care sector, work in essential public sector departments or when the parents have no other option than to send the children for care to their grandparents (regardless of their age).
 
In other cases where the employee still has to go to her/his workplace, (s)he can also take a maximum of 10 days per year of unpaid leave for ‘compelling reasons’, looking after children because of school closure being one of those reasons.
 
 
  1. Can the employer require disclosing if an employee has symptoms of an infection by the virus or if they have already been diagnosed?
It is in principle not permitted to require an employee to disclose personal information, as it could violate the employee's right to privacy (art. 22 Constitution, 8.1. ECHR).

However, the employer has the following obligations: (1) Obligation to analyze health and safety risks in the workplace and take necessary measures to preserve it (art. 5, §1 of the Well-Being At Work Act ("WWA"), art. 20, 2° of the Employment Contracts Act ("ECA")), (2) Obligation to adapt those measures in case of situational change (art. I.2-3 Well-Being At Work Code ('WWC")) and to take measures to protect employees against chemical and biological agents (art.  I.2-7, al. 3, 5° WWC). The employee, on the other hand, has the obligation to refrain from doing anything that could be detrimental to the safety of his or her colleagues and to his or her own safety (art. 17, 4° ECA).

We are of the opinion that in view of the current pandemic, and given the employer's protection and prevention obligations, the employer is entitled to ask the worker to report whether (s)he is a carrier of this contagious virus or whether (s)he is showing symptoms.

In Belgium, employers are advised to recommend that workers who think they have symptoms should contact their doctor by telephone. If the employee feels fit to work and does not declare her/himself unable to work, the employer is in principle not allowed to ask her/him for a ‘certificate of capacity’. The employer may, however, always send the employee to the occupational physician (médecin du travail/arbeidsgeneesheer), who then will evaluate whether a medical examination should take place or not.

However, if the employer notices that the physical/mental condition of the worker increases the risks at the workplace, (s)he has to notify the occupational physician, who will decide whether a medical check-up is necessary (art.I.4-4, §2 WWC). The occupational physician and eventually the employer can oblige the employee to go home in the frame of the employer's obligation to protect the health of her/his employees.

 
  1. In an international employment scenario, will the internationally applicable social security law be impacted if expat employees now work from their home in Belgium?
In the frame of international mobility and in view of the current pandemic, the increased use of telework as a result of government measures can be a source of concern for cross-border workers and companies with regard to social security. Indeed, the sudden increase in professional activities carried out from home could, in some cases, lead to a change in the applicable social security legislation.

In application of EU Regulation 883/2004 on the coordination of social security systems, a worker who resides in the EU, EEA or Switzerland and works in another is subject to the social security of the country of employment. However, in the event of substantial activity in the Member State of residence (i.e. at least 25% of working time), the latter State becomes competent, in application of the EU Regulation. Due to the increased use of teleworking as a result of the COVID-19 measures, the activity of such cross-border workers could quickly become substantial in the country of residence.

In view of the exceptional situation, the competent Belgian ministries for social security for employees and self-employed workers have decided that the periods of telework performed on Belgian territory by cross-border workers due to the coronavirus will exceptionally not be taken into account for the determination of the applicable social security legislation and that they will therefore have no influence on their affiliation to social security.

This measure will apply from March 13, 2020 (midnight) and for as long as the emergency measures taken by the Federal Government to limit the spread of the coronavirus are in force.

Obviously, it will also be relevant for many workers and companies in situations of employment in a cross-border context to check whether foreign social security administrations take a similar position.

 
  1. What is the impact of the COVID-19 virus on the processing of employees' personal data?
The Chair of the European Data Protection Board (EDPB) has provided on March 16, 2020 a statement on the processing of personal information in the context of the COVID-19 outbreak. In summary, the EDPB has confirmed that employers will be able to process personal information in the context of pandemics like COVID-19, provided that they can rely on appropriate legal grounds such as reasons of public health or the protection of vital interests. In such cases, consent of the data subject will not be required.

The EDPB also comments on the use of electronic communication data (such as mobile location data) by public authorities and highlights that additional rules will apply if using this information. Public authorities should first aim to process such information in an anonymous way, and, if this is not possible, Member States can introduce legislative measures on the basis of national and public security, enabling authorities to use this information.
 
In Belgium, the main principles in respect of the protection of privacy on the work floor remain applicable. In that respect, articles 6 and 9 of the General Data Protection Regulation (GDPR) are most important.
 
The following main aspects need to be respected:
  • In principle, it is forbidden to process ‘special personal data’, and information relating to the health of workers in particular;
  • Exceptionally, the employer may process this type of data under strict conditions (e.g. the collection and retention of medical certificates for the purpose of carrying out the obligations in the field of employment law (art 9.2b GDPR), for the purpose of preventive or occupational medicine, for the assessment of the working capacity of the employee (art 9.2h GDPR), or for reasons of public interest in the area of public health (art 9.2i GDPR);
  • The employer must be transparent vis-à-vis the employees (i.e. adequate communication);
  • The employer must document its data protection policy (and possibly adapt it to the COVID-19 consequences related to home-teleworking);
  • In any case, the employer must respect the principles of proportionality and minimum data processing (i.e. is it effective and strictly necessary for me to process certain personal data in order to achieve the intended purpose, such as to guarantee the safety and health of the staff, to ensure the proper functioning and continuity of the company, etc.?).
 
The Belgian Data Protection Authority published advice for employers and employees in the frame of COVID-19. You can read more here: COVID-GBA/COVID-APD.

  1. What is your government's response to protecting workers as a result of Corona-virus?
The Chinese central government, as well as different local government authorities have introduced a series of emergency measures since the outbreak of Covid-19, such as expanding the paid Chinese New Year Holidays, calling for avoiding layoffs during the virus control, and specifying that employees who cannot go back to work due to medical treatment or government quarantine shall be fully paid.  National and local human resources departments have also provided social insurance payment exemption or relief for certain qualified enterprises.

 
  1. Working from home – Are employers continuing to pay employees who work from home?
 In general, the employer has the liability to pay the salary in full to those employees who are arranged to work from home. In certain cities and regions , it is also stipulated that in case employees are required to work from home on non-working days, employers shall arrange for days off-in-lieu or pay overtime payment as per statutory standard to employees.

 
  1. What other considerations should employers take into account when allowing employees to work from home?
 Specific company rules regarding working from home shall be established including online attendance check, internal approval procedure, KPI evaluation, commercial secrets protection, etc.

 
  1. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
 Employer is recommended to first negotiate with its employees to arrange for their paid annual leaves.  In addition, employer could also negotiate with their employees to adjust salaries, to change job positions, or to shorten working hours, etc. so as to avoid or reduce layoffs. In case employer has to suspend production or operation due to the impact caused by the virus, it is allowed to pay living expenses to their employees only (rather than full salary) starting from the second month when such situation appears.

 
  1. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
 There is no national level regulation addressing this issue. However, in some cities (e.g. Beijing), the local regulation provided that each household is allowed to arrange one person to look after the minor children at home before schools are reopened. Such person’s salary and benefit shall be paid by the employer as normal attendance.

Liang Xing
Partner – China
Liang.xing@fieldfisher.com






 

  1. What is your government's response to protecting workers as a result of Corona-virus?
 The French Ministry of Labour has drafted and is updating a Q&A for companies and employees on Covid-19 to help them face this risk and provide them with answers on (i) the measures to be taken in different situations or (ii) applicable rules. At this stage, these are only recommendations but the government may take more coercitive measures. President Macron asked employers to authorize employees to work from home as much as possible.
 
Besides, the requirements for benefiting from social security financial compensation for persons exposed to coronavirus have been adapted. Therefore, the following people will receive a social security daily benefit from the French Social Security Administration as from the first day of their work stoppage and without the minimum seniority condition being required :
  • Employees who are in quarantine after having been identified as a "high-risk contact case" ("cas contact à haut risque") by the Regional Health Agency,
  • Employees who have to look after a child under the age of 16 years old or a child with disabilities without age limit, during the closure of his/her daycare centre or school,
  • Employees suffering from certain serious diseases or pregnant employees (mainly from the third quarter onwards), when working from home is not possible.
 
  1. Working from home – Are employers continuing to pay employees who work from home?
If employees continue to work, even remotely, their employer shall pay their whole remuneration.

 
  1. What other considerations should employers take into account when allowing employees to work from home?
 In the event of exceptional circumstances, in particular the threat of an epidemic, or in the event of force majeure, the implementation of telework may be considered as an adaptation of the workstation made necessary to allow the continuity of the company's activity and to guarantee the protection of employees. In such cases, the consent of the employee, which is normally mandatory, is not required and the implementation of telework does not require any formality. The employer shall ensure that employees are provided with the necessary IT tools to work from home.
 
Nevertheless, due to its general duty of care, the employer must ensure that the employee can perform his/her duties from home without risk to his/her health.
 
 
  1. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
 As it is reminded by the government Q&A, if an employee does not benefit from a work stoppage issued by the Doctor from the Regional Health Agency, but his/her employer asks him/her not to come to work, his/her remuneration shall be maintained. Such period of absence will be considered as a period worked and the employee will benefit from the same rights as the employees who are still working in the premises of the company.
 
In order to help employers who are forced to stop activities and suffer severe economic difficulties, the French state employment fund provides for extended short-time work ("activité partielle"). During such short-time work period, employees receive about 70 % of their compensation. The State will provide financial help to the employers.

 
  1. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
As previously stated, employees who must look after a child under the age of 16 may benefit from a daily allowance from the French Social Security Administration. So far, this measure does not apply for employees who have to look after dependants.

Laurence Dumure-Lambert 
Partner – France
Laurence.DumureLambert@fieldfisher.com





 

  1. What are the general obligations of employers?
Employers have a general duty of care towards their employees. This also includes informing employees about the risks of infection and illness, especially if employers already have concrete indications of these risks. This is particularly the case if employees have recently been in a coronavirus risk area.

In addition, employers have a duty to their employees to take measures to prevent the spread of disease and to communicate their recommendations around behaviour and hygiene. Examples of this include:, hygiene guidelines for washing hands, the provision of disinfectants or the recommendation to cough into the crook of your arm or a handkerchief and avoid shaking hands. In workplaces with an increased risk of infection such as health care, sales or transport, special protective measures may need to be taken, for example providing breathing masks or protective gloves.
 
The risk areas for coronavirus are currently defined by the Robert Koch Institute (RKI) and can be found under the following link: https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Risikogebiete.html
 
  1. Are employees allowed to refuse to work for fear of infection?
Employees generally have no right to refuse to work and stay at home, unless they are requested to perform an activity which is associated with a significant personal risk to health and life and goes beyond general risk of infection for the employee.

If, for example, there is a justified suspicion that an employee is at work and the employer does not take any protective measures the employee may have a right to refuse to work in the office.

Furthermore, a suspected case of a flu-like infection is not in isolation a reason to refuse to work. According to information from the Association of Statutory Health Insurance Physicians (kassenärztliche Vereinigung), a justified suspected case only exists if the person has had contact with a confirmed "coronavirus case" or has been in a risk area specified by the RKI within the last 14 days or has symptoms such as fever, hoarseness, cough or shortness of breath.

On the other hand, prophylactic absence from work without concrete evidence of a considerable risk of infection or without a justified suspicion legally constitutes an impermissible refusal to work. In such cases, employees must expect consequences under labour law. Depending on the individual case, employers can admonish, warn and, if necessary, even terminate the employment contracts of employees. 
 
  1. May employers arrange working from home for their employees?
Allowing employees to work from home generally requires a corresponding provision in the employment contract or the consent of the respective employees. If a corresponding works agreement exists employees may also work from home within the framework of said agreement without the consent of the employees.

However, given the current situation, we believe that there are good arguments that employers can ask employees in individual cases to work from home even without individual or collective agreements, provided that the necessary equipment, such as a laptop or business mobile phone, is made available to the affected employees. Furthermore, in such cases it is important to weigh up the interests of the employees in question against the employer's interests in effective health protection for the rest of the workforce: a duty of care, consideration and loyalty play a special and important role. 
 
  1. Can employers order travel to coronavirus risk areas or send employees there?
Employers can have a right to send an employee to another location or on a business trip within their general right to give instructions under that employee's employment contract. However, they are only entitled to do so to the extent that the instruction is within the scope of reasonable discretion. If, for example, a travel warning from the Federal Foreign Office (or a warning from the World Health Organization (WHO)) or the RKI has been issued, an ordered business trip or posting to the risk area is no longer likely to be seen as within the scope of reasonable discretion. In this case, employees can have the right to refuse to work.

In other cases, the individual situation of the employees (such as a previous illness) can play a role in the decision process and lead to employees being allowed to refuse to travel. In these cases, the employee's entitlement to remuneration remains intact.
 
 
  1. Are employers entitled to ask questions about a past stay in a coronavirus risk area?
During the risk period of the coronavirus spreading, employers may ask whether employees have stayed in a risk area e.g. during their annual leave. In this case, employees generally have to provide information about whether they were in a risk area but do not have to state their exact last whereabouts.
 
  1. How can employers deal with individuals who have returned from coronavirus risk areas or employees with relevant symptoms?
If employees return from a coronavirus risk area or if employees show known symptoms of the coronavirus disease, employers can order the relevant employees to work temporarily from home or release them from their work duties in order to prevent any possible infection of other employees. This is in line with the employer's duty of care towards the rest of the workforce.

In the event of a release from work, the employees' right to employment takes second place to the duty and interest of the employer to protect the rest of the workforce and ensure the smooth running of the business. The period of release from work should be based on the incubation period of the coronavirus of about 14 days (recommendation of the RKI). The conditions described above under point 3 apply to work in the home office.

Remuneration must continue to be paid during a leave of absence and for working from home. Before returning to the company, employers may require affected employees to provide an informal medical certificate confirming that no infectious disease is present.
 
  1. Can employers order short-term work?
In the event of difficulties in the company due to a lack of orders or delivery bottlenecks, as well as the threat of plant closures due to infection, it is within an employer's interest to order short-time work. However, employers can generally not unilaterally order short-time work. Instead, short-time work must generally be agreed individually with the employees affected. In companies with a works council, a corresponding works agreement should be agreed upon.

If short-time work is justifiably ordered the employees concerned may receive short-time work compensation, provided the relevant conditions are met. The employer can apply for short-time work compensation from the responsible employment agency after a prior notification.

The conditions for granting short-time work compensation have been relaxed in the light of the current crisis. The changes initially involve lowering the threshold for receiving short-time work compensation. An entitlement will now exist if 10% of the employees employed in the operation achieve a monthly gross salary that is reduced by more than 10% due to the loss of work.

In addition, it will be possible to receive short-time work compensation in the area of lease of employees.
Furthermore, the Federal Employment Agency will also in future fully reimburse the social security contributions borne solely by employers for employees receiving short-time working allowances.
For employees who take part in further training while receiving short-time work compensation, employers are to be reimbursed half of the social security contributions.

The statutory period of entitlement to short-time work compensation is 12 months. However, it can be extended to up to 24 months by a statutory order of the Federal Ministry of Labour and Social Affairs. 
 
  1. Can employers ban private meetings of colleagues?
The employers' right to issue instructions is limited to the employment relationship. Even if employers have released employees from work as a precautionary measure or due to a suspected case, they cannot ban employees from meeting with their colleagues in their free time.

However, there is nothing to be said against appealing to the employees' sense of responsibility that their own time off also serves the health protection of their colleagues.
 
  1. What rights do employees have when nurseries, day care centres or schools close?
Difficulties can arise for employees when day-care centres, nurseries or schools close and they therefore have to care for their children during their working hours. As a rule, employees may be absent from work with pay for a "non-substantial period of time" which is usually five to ten days, unless they can make use of other childcare options. In this case, employers can also instruct employees to take leave, reduce overtime or, under certain circumstances, work from home.

Something different may apply if other regulations on temporary incapacity to work have been agreed in the employment contract or a collective agreement. Employees are entitled to unpaid leave of absence to care for their children, if they cannot be cared for elsewhere and that they cannot be referred to holidays or overtime reduction.
 
  1. Should employers draw up an emergency plan?
It is important to develop a uniform contingency plan for the outbreak of infectious diseases. This should define the procedure that would be adopted if infectious disease occurs amongst employees. In particular, it is advisable to determine what essential roles and functions would need fulfilling in order for the company to maintain operations as normal.

When creating the plan, it is important to involve a number of members of the workforce, the company doctor and occupational health and safety officer to guarantee a functional and effective procedure. If a works council exists, it must be involved too as many of the planned measures, such as overtime regulations, rules of conduct or the assignment of activities other than those contractually agreed, require mandatory co-determination.
 
  1. Are employers allowed to order fever measurements to be taken to "control entrance" to  the company premises?
When visitors arrive at the office, employers can ask to take their temperature and prohibit visitors from entering the premises if the visitor refuses to comply or shows an elevated temperature. This procedure is covered under the employers' householder's rights. However, discriminatory entry restrictions such as not allowing someone to enter because they are Asian (this is where the disease was first recorded) is not legal.

Employers must observe the general personal rights of their employees. That said, arbitrary health checks when entering the workplace are not permitted. However the current situation is exceptional and it is considered justifiable to carry out a general temperature measurement of employees, even if there is no concrete or confirmed suspicion of an infection. Data protection regulations, including the duty to inform anyone concerned when processing personal (health) data must be observed. In addition, procedures must be carried out equally across all employees. In such cases, a corresponding order is covered by the employer's right of direction.
 
  1. What are the consequences of an official ban on employment or an official quarantine?
In the event of an official quarantine order, affected employees are entitled to compensation from the employer for loss of earnings for a period of up to six weeks in accordance with the German Protection Against Infection Act (Infektionsschutzgesetz). According to the Act, employers can have their expenses reimbursed by the competent state authority which is usually the local health or pension office. From week seven, employees are entitled to sickness benefits. When asserting claims for reimbursement, an application deadline of three months after the start of quarantine must be observed.

Marcus Kamp
Partner - Germany
Marcus.Kamp@fieldfisher.com






Marcus Iske
Partner - Germany
Marcus.Iske@fieldfisher.com






Dr. Fabian Reissinger
Partner - Germany
fabian.reissinger@fieldfisher.com

  1. What is your government's response to protecting workers as a result of Corona-virus?
 The Irish Government has recommended that people should continue to go to work, but those who can work from home should do so. This is a recommendation only and does not have strict legal status. However, government recommendations in this area are being followed by many employers, particularly those whose employees can work remotely. The Irish Government is also introducing emergency legislation, to provide increased state income support (social welfare) to employees for a maximum of 2 weeks medically required self-isolation or for the full duration of absence from work following a confirmed diagnosis. The objective is to ensure that workers will not be afraid to self-isolate on financial grounds.

 
  1. Working from home – Are employers continuing to pay employees who work from home?
 Yes. The basic position is that if an employee is available for work and willing to present for work, then they are entitled to be paid as normal. Employees who work from home by arrangement or by direction of their employer should be paid their salary, as normal. Failure to comply with contractual obligations to pay employees in circumstances where they are available for work may lead to breach of contract and/or a statutory payment of wages claims against the employer. Employees do not have a statutory right to insist on remote working but, where it is operationally possible, the majority of employers are permitting this.
 
 
  1. What other considerations should employers take into account when allowing employees to work from home?
 Ireland has many multinational employers and remote working for some employees is not uncommon. Where employees work from home, their home becomes their workplace. As such, the same legal protections and employer obligations apply to that workspace, as if they were in the traditional office workspace. Some employers have specific remote working policies. More generally, employer concerns fall primarily from into the following categories; the employees' health and safety in their remote workspace, maintaining a record of employee working hours, data protection, and ensuring that steps are taken to mitigate the risks of loss or distribution of confidential data for remote workers.

 
  1. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
 To date, there have not been widespread forced closures. If an employer voluntarily closes a workplace but employees are not able to work remotely, the employer must pay employees as normal. If employers are advised by the government Health Service Executive (HSE) to temporarily close their place of work due to COVID-19, but their employees are not able to work remotely, it is expected that they will continue to pay employees as normal. If an employer is unable to pay or continue to pay employees who are at home and unable to work remotely, those employees will be considered to have been temporarily laid-off and can apply for an income support in the form of a Jobseeker's Payment or Supplementary Welfare Allowance.

 
  1. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
 The basic position is that if an employee is available for work and willing to present for work, then they are entitled to be paid as normal. The converse is that, if they are unable to present for work, then they are not entitled to pay as normal. The only exception to this is statutory force majeure leave (up to 3 paid days in a year) where an employee needs to stay at home to care for a close family member due illness or injury, In practice however, there may be some softening of this strict position by at least some employers. The Irish Government has urged all employers to support national public health objectives by considering a range of arrangements with their employees. These may include compassionate leave, enabling employees to take their accrued annual leave or bring forward an annual leave entitlement which has not yet accrued, and facilitating employees to take parental leave, waiving the usual notice requirement.


Barry Walsh
Partner – Ireland
Barry.Walsh@fieldfisher.com





 

  1. What is your government's response to protecting workers as a result of Corona-virus?
In order to protect workers during the Corona-virus emergency, the Government has taken several measures:
  • Simplification of the procedures for using smart-working:
Smart-working can be carried out at the choice of the employer even without a specific individual agreement with the employee;
The employer can communicate massively the names of the employees in smart-working and provide them security information also electronically, through a form made available by INAIL (The Italian National Body for insurance against industrial injuries).
  • The employer who doesn’t use smart-working is bound to comply with some given security measures in the workplace: granting a distance of at least one meter between the various employees, providing workers with safety devices (such as gloves and masks).
  • Finally, companies have been requested to allow employees to take holidays and leave, where possible.
 
  1. Working from home – Are employers continuing to pay employees who work from home?
Employers are bound to pay the salary to their employees in smart-working.

 
  1. What other considerations should employers take into account when allowing employees to work from home?
In case of employees in smart-working, employers have to satisfy job security obligations. As mentioned, in this emergency phase, companies are allowed to provide the related security information electronically, through a form made by INAIL which contains all the necessary information on the matter. 
 
In addition, employers should advise employees in smart-working to observe the necessary precautions to guarantee the confidentiality and integrity of the data processed, in compliance with current legislation on privacy.

 
  1. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
Following the Corona-virus emergency, the Italian Government has provided forms of income support for all private employers of the areas most affected by COVID-19 (Regions of Lombardia, Veneto and Emilia-Romagna) and an allowance of € 500/per month for three months for self-employees of the same areas.
 
In order to broaden the scope of these measures to whole Italy, the Italian Government is enacting a Law Decree - which should be issued during next weekend - which introduces special provisions regarding social safety nets. In particular, this measure will provide, for employers already included in the field of application of social safety nets, the introduction of a new reason called "emergency COVID-19" which will entitle the ordinary wage supplement treatment for a maximum period of 9 weeks.
 
For those employers to whom social safety nets are not applicable, it will be provided for a particular redundancy fund in case of suspension or reduction of working hours as a consequence of the epidemiological emergency from COVID-19, always for a maximum of 9 weeks.
 
 
  1. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
Employees who need to stay at home to look after children or dependents because schools or care homes have been closed, can apply, where possible, for smart-working.   
         
In case smart-working would not be possible, the Italian Government is going to provide for appropriate measures such as special parental leave and special vouchers to be used to pay baby-sitter during this school closing period due to the emergency.


Silvia Lucantoni
Partner - Italy
Silvia.Lucantoni@fieldfisher.com
 

  1. What is your government's response to protecting workers as a result of Corona-virus?
There is no general lockdown. The Dutch government has ordered the closure of bars, restaurants, schools, day-nurseries and gyms through 6 April 2020. Other businesses (including hotels) may remain open. In addition, the government has requested that employees work from home where possible. Employers who suffer a 20+ percent drop in turnover due to the coronavirus are entitled to compensation (see Question 4). 

 
  1. Working from home – Are employers continuing to pay employees who work from home?
 Yes, employees continue to be entitled to their normal salary and perquisites.

 
  1. What other considerations should employers take into account when allowing employees to work from home?
Depending on the nature of the work, it may be advisable to implement policies specifically aimed at working from home for matters such as IT, data protection, occupational health and safety and working time.

 
  1. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
Employers who expect a 20+ percent drop in turnover from 1 March 2020 due to the coronavirus are entitled to compensation. Compensation is up to 90% of employees’ salaries, depending on the drop in turnover (for example: 100% drop > 90% of salary compensated; 25% drop > 22.5% of salary compensated).

Compensation is capped and for a maximum period of 3 months with the possibility to extend for another 3 months. During this period, the employer cannot make employees redundant, while employees, in principle, remain entitled to 100% of their salary.

Compensation extends to employees on permanent and flexible contacts (including on-call and zero hours contacts and temporary workers). Compensation is initially paid as an 80% advance payment. The definitive amount of compensation will be determined later.

 
  1. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
There are no specific rules for this situation. As a general rule, employers will be required to accommodate employees as much as reasonably possible, e.g. by allowing them to work from home. If working from home is not feasible, the employer will normally be required to grant unpaid leave. In case the employee is ill, normal rules regarding continued payment of salary during sick leave apply (up to 24 months).

Frank van Uden
Partner –The Netherlands
Franck.vanUden@fieldfisher.com






 

  1. What is your government's response to protecting workers as a result of Corona-virus?
 Specific prevention of occupational hazards measures for health personnel have been approved. Private sector employers, due to safety regulations, have the obligation to promote working from home, they also should seek ways to suspend employment if there is any employee affected by the virus and the services cannot be rendered from home.

 
  1. Working from home – Are employers continuing to pay employees who work from home?
 The employer has to pay the salary in full to those employees who work from home, without exception. In this regard, it is advisable to estipulate by means of the relevant agreement, that the employer will not assume any additional costs related to services rendered from home.

 
  1. What other considerations should employers take into account when allowing employees to work from home?
 Specific company rules regarding working from home shall be established including among others, monitoring, attendance check, working time provisions (i.e. overtime), prevention of occupational hazards and BYOD policies, if applicable.

 
  1. What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
 When the employees are not receiving a temporary illness benefit, their contract is in force for all purposes. Therefore, in the current scenario, the employer should promote a temporary suspension of employment contracts, which can be based on productive and/or organizational reasons when the employer cannot open its workplaces, this type of procedure involves a consultation period of a maximum of 15 days, with employee representatives -if there are no representatives, the employees have to elect ad hoc representations for the sole purpose of this negotiation-, who shall be informed in advance about the procedure (i.e 7 days to employee representatives and 15 days to employees without representation, although we expect an amendment on this requirement in the next few days). Note that when there is an agreement, the negotiation can be solved within one or two days and the employees can be affected as soon as the agreement is reached and informed to the Employment Authorities.
 
Another alternative is to suspend the employment contracts based on force majeure. This procedure is unilateral and does not involve any consultation period or prior notice to the employees; but requires a decision from the Employment Authorities. In particular, employers must request the Employment Authorities to declare the existence of a force majeure scenario, which is reserved to extreme cases directly affected by the pandemic situation (e.g. the Governments declares a general closure of the commercial activity in a certain area), and its analysed case-by-case.
 
 
  1. What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
 The Government is currently working on a future decree to address this specific situation and grant the relevant employees with a specific benefit. At this moment, if the employees have to stay at home to take care of children or any other family members, and do not have a temporary illness benefit, would have to either exercise their conciliation rights and request working from home –if that is possible- or to request a non-paid leave period for personal reasons; the employer is entitled to reject these requests but it has to provide objective grounds to deny it.

Talmac Bel Geronés
Partner – Spain
talmac.bel@fieldfisher.com






 

1.         What is your government's response to protecting workers as a result of coronavirus?
 
The government has made changes to the Statutory Sick Pay (SSP) regime, to provide that SSP will be paid to employees and workers who have been told to isolate themselves or who are isolating themselves in accordance with published Public Health England advice, even if they do not have any symptoms.
 
Further changes have been announced to extend the benefit to those caring for somebody in their household who is in self-isolation and who is suffering coronavirus symptoms. These have not yet been implemented, though in practice relevant individuals will be covered by the SSP changes around self-isolation. SSP is paid at a statutory rate of £94.25, for a maximum period of 28 weeks.
 
Rules in respect of SSP will also change, meaning that individuals will be eligible for SSP from their first day away from work, rather than having to wait until their fourth day as was previously the case. Business with fewer than 250 staff will be able to claim back from the government 14 days' SSP (per employee) paid to staff affected by coronavirus. There will also be changes to the way that sickness absence and self-isolation is evidenced, to take pressure off general practitioners.
 
2.         Working from home – Are employers continuing to pay employees who work from home?
 
If the employee can complete all of their work as normal from home, they should receive their pay and benefits as usual. In some cases, employers may be able to vary employees' duties in order to ensure that they can remain fully productive while working remotely.
 
If employees can only carry out some of their usual duties and therefore cannot fill their working time, employers may come under pressure around pay if the situation persists for a significant period. Where employers are forced to consider reductions in pay, they should seek legal advice before taking any measures.
 
3.         What other considerations should employers take into account when allowing or instructing employees to work from home?
 
Employers should be alive to a number of issues:

  • Employers will need to carefully think through and contingency plan for any operational issues that may arise out of groups of employees (or, in extremes, the entire workforce) working from home. Employers should ensure that employees have access to appropriate equipment (e.g. laptops and telephones), that IT systems are stress tested for increased use (e.g. Skype for business and other systems), and that employers have employees' contact details.

  • Another area of focus will be data security and how information will be sufficiently protected whilst employees work from home on devices, for example through placing restrictions on employees working in public spaces and through the use of secure VPN connections. 

  • Employers should continue to be aware of their duty to ensure the health, safety and welfare of their employees. For example, employers will need to consider whether employees have the equipment to safely work from home, whether their workstations are adequately set up to mitigate health and safety risks (to the extent practicable), and whether there are any measures that can be put in place to mitigate the mental health impact of being isolated and removed from the social work environment (e.g. Whatsapp groups with co-workers, a "buddy" system or regular catch-ups. 

  • Employers will want to make the expectations of employees clear in terms of working time and output, to avoid misunderstandings. In certain sectors or businesses, there may be a concern that employees are distracted or even that they might use the opportunity to work much less hard than they would if in the office. Where there are specific concerns, employers can put in place enhanced monitoring. They will need to think through the data privacy implications of doing so and ensure that they are transparent in relation to any monitoring practices.

 
4.         What are employers doing when employees cannot work from home and their place of work may have to be temporarily closed?
 
The starting point is that, where an employer has asked employees to go home and is not providing work, the employer will need to keep them on full pay. Employers may however have certain options, dependent in part on the terms and conditions in their employees' contracts of employment.
 
They may:

  • Direct employees to use their annual leave allowance (this right is a statutory right – it need not be specified in employees' contracts of employment, though the contract can override it). This may be an attractive solution where the closure is likely to be short-term. If an office or business is likely to close for more than a few weeks, this is unlikely to be viable (and requiring employees to exhaust their holiday entitlement early in the year will have health & safety implications).

  • Ask them to take temporary leave, either unpaid or on an agreed lower rate of pay. Employers are unlikely to have the power to do so in their contract, so arrangements will need to be agreed with employees and/or unions.

  • Use "lay off" or short time working provisions in employees' contracts.

Where employers are forced to consider more significant structural measures, or where they are facing short-term cash flow problems, we recommend that employers seek further legal guidance on their options before designing business solutions.

 
5.         What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?
 
Employees have a statutory right to take a "reasonable" amount of unpaid time off to deal with unexpected events affecting their dependants. Where, for example, a school suddenly closes, the employees may need one or two days off to make alternative arrangements, and so would be entitled to take this off as unpaid leave. If the employee is caring for a child suffering coronavirus symptoms, they may be entitled to SSP following changes to the sick pay rules.
 
Employers may also have relevant policies, such as a "time off for dependants" policy, and employers should remind themselves now of relevant provisions, and review these to ensure that they have thought through the business implications of large numbers of employees being forced to take advantage of them.
 
Depending on the circumstances, employers may want to explore putting in place additional support for employees who cannot work because of caring responsibilities, including flexible working, communal or business-sponsored childcare arrangements, loans, "fall-back" pay, or Employee Assistance Programmes.




Ranjit Dhindsa
Partner -UK
Ranjit.Dhindsa@fieldfisher.com






David Carmichael
Partner –UK
David.Carmichael@fieldfisher.com






Nicholas Thorpe
Partner –UK
Nicholas.Thorpe@fieldfisher.com