08-12-20

Q&A - What if one of your employees refuses to comply with the coronavirus measures?

Suppose that one of your employees disregards the coronavirus measures implemented and, consequently, jeopardises the health of their colleagues. Can you impose sanctions on the employee in response? And, if so, how?

Can I impose sanctions on my employee for failing to respect the coronavirus rules?

Yes, because the employment contract clearly states that employees may not perform acts that may harm their own safety or that of their employer. The Wellbeing Act goes even further: employees must follow their employer’s wellbeing instructions and are responsible for their own personal safety and health and that of their colleagues. Translated to the coronavirus context, this means disinfecting hands regularly, wearing a facemask properly and maintaining a sufficient distance from others.

There’s even more: every employee is required to inform the internal prevention department and their employer of dangerous work situations. For example, if there is no more disinfectant or the plexiglass screens are no longer properly in place. However, this also refers to unconscionable conduct, such as not or incorrectly wearing a facemask, going to work while sick or disregarding the quarantine rules.

What kinds of sanctions can be imposed on an unconscionable employee?

1.      Your employee can be held criminally liable

As a result of negligence or carelessness, a colleague can become infected, (seriously) ill or even die. So, those who fail to comply with the precautionary measures either in full or in part can be held criminally liable for ‘accidental death or assault and injury’. A conviction is even possible for slight negligence, even though it is difficult in practice, of course, to prove with 100% certainty who has infected who.

2.      Your employee can be held financially liable

An employee who commits fraud or gross negligence can be held financially liable for the damage caused to the employer and/or others. Suppose one of your employees disregards the mandatory quarantine rules, ostentatiously refuses to wear a facemask or conceals an infection.

If this causes an outbreak in the workplace, their department may be subject to a temporary lockdown, the business premises must be disinfected, deliveries postponed, and so on. The court may hold them financially liable for this. In this case, they will be presented with the bill and this will have to be paid from the employee’s private assets.

3.      The behaviour may give cause for dismissal for misconduct

The ‘misconduct’ must, of course, be significant. More concretely, a one-off case of carelessness or negligence (such as failing to disinfect hands or maintain a distance from others) is, of course, insufficient. But refusing to wear a facemask or not mentioning an infection are sufficient justification for dismissal for misconduct.

As an employer, you will have to prove that the behaviour is a serious shortcoming that makes any type of professional collaboration absolutely impossible. Should it progress to this point, you may terminate the employment contract immediately and without severance pay.

Liability vs privacy

Every employee must actively contribute to reducing health risks in the workplace to a minimum. But what about privacy issues? Can you demand that your employees notify you when they have been on holiday to a red zone? Or when a family member is infected?

The rule is that if a person’s private situation can lead to a possible infection in the workplace, your employee may not hide behind privacy protection policies. They can in fact be held liable.

As an employer, what can I do to avoid liability issues?

Clear instructions are an absolute must. To avoid any misunderstandings, of course, but also to be in a stronger position if the situation leads to a sanction. Write down clear rules:                                                  

  • The risks that your employees are required to report (such as the rules that apply at your company regarding notification following a holiday in an orange or red zone)
  • When an employee is required to quarantine
  • How and to whom the quarantine should be reported
  • The required protective equipment and measures in the workplace
  • Responsibilities with regard to contact tracing (what if an employee is notified by a contact centre regarding a high-risk contact?)
  • The organisation of the internal contact tracing system
  • The coronavirus-safe use of company cars, rooms, equipment, etc.
  • Temporary isolation of employees in the workplace who are unable to quarantine at home

Prevent the spread of COVID-19 in the workplace

Our restart guides enable your employees to work safely and healthily in these times of coronavirus. More information and tips can be found at coronaophetwerk.be.

Questions? Give us a ring at +32 2 549 71 00 or email us. We are happy to help.

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