Q&A – are the measures from the generic guide mandatory?
The Supreme Council for Prevention and Protection at Work, the Policy Unit of the Minister of Work, and experts from the FPS Employment have drawn up a generic guide to support the restart of the economy. It contains rules to limit the risk of contamination in the workplace. But are these measures mandatory? And as an employer, can you be prosecuted if you do not strictly apply them?
The generic guide contains general rules and measures, supplemented with guidelines at sectoral or company level. The collective measures in the guide always take precedence over the sector/company-specific measures. A legal analysis clarifies to what extent the measures are mandatory and what the consequences are of non-compliance.
Are the generic measures enforceable?
The measures in the guide do not require a result obligation, but an effort commitment. Specifically: as an employer, you can choose to follow other measures that offer an “equivalent level of protection”. You do not literally have to comply with the measures described in the generic guide, however you are obliged to take measures to create the safest workplace possible. Taking this into account, the generic guide leaves room for employers to take the most effective measures for their organisation.
What if your “equivalent” measures are inadequate or are not observed?
The ministerial decision makes it clear that the labour inspectorate will supervise compliance with the safety measures. Employers cannot be prosecuted for failure to comply with the measures because the generic guide is not a regulatory document.
But make no mistake: there are indeed consequences if you do not take measures, or the measures you take are insufficient. The generic guide is part of the welfare policy, so the measures fall under the welfare obligation. The welfare law legislates that all employers have a duty to promote the well-being of their employees. Violations of the welfare law do have criminal consequences.
In other words: as an employer, you cannot be prosecuted for not complying with the specific measures in the guide, but you can be prosecuted if you have taken inadequate measures (or cannot demonstrate that you have taken sufficient measures).
Can your employee hold you liable if you do not take measures, or the measures you take are insufficient?
Yes. As an employer, you have a contractual obligation to ensure employees can work in safe conditions. If not, your employee can hold you contractually liable.
Can your employee be prosecuted if he/she does not comply with the measures?
In principle, only the employer is punishable. An employee can only be prosecuted if it can be proven that an infection has been caused by a lack of caution. That is a heavy burden of proof.
As an employer, can you hold an employee liable if he/she does not comply with the measures?
Under employee contract law, an employee may not cause harm to colleagues, employers or third parties. However, an employer can only hold his/her employee liable for non-compliance with the measures in the case of:
- one serious error,
- repeated, minor errors.
These errors are not easily detectable in the case of corona measures. The employer can impose disciplinary sanctions on employees who do not comply with the measures, if this is provided for in the employment regulations.
Avoid spreading Covid-19 in the workplace