Enhanced powers for the occupational physician in fighting COVID-19 lead to additional obligations for employers
On 21 January 2021, the Royal Decree of 5 January 2021 on the role of the prevention advisor-occupational physician in the fight against COVID-19 was published in the Belgian Official State Gazette. This Royal Decree enhances the powers of the occupational physician with respect to the fight against the spread of COVID-19 which leads to additional obligations for employers.
Occupational physicians have an important role in the fight against the spread of COVID-19 within the company and in contact tracing at the workplace. After all, they are familiar with the risks and prevention measures that apply within the company.
The welfare regulations (more in particular: the Code on well-being at work) do contain a number of general provisions that give the occupational physician a role in the prevention of contagious diseases at work. But the rules on contact tracing, quarantine and testing were not part of it. Therefore, the Royal Decree of 5 January 2021 was approved to assign to the occupational physicians a number of additional, specific tasks that are necessary to be able to fight the current pandemic as efficiently as possible at the workplace.
Since it concerns temporary measures, it was decided to make a separate Royal Decree and not to integrate it into the Code on well-being at work. These measures are also temporarily given priority over the normal assignments and tasks of the occupational physician in the context of health surveillance.
New tasks related to COVID-19
A number of new specific tasks are assigned to the occupational physician to fight the spread of COVID-19 in companies and institututions, namely :
- identifying high-risk contacts in the companies;
- issuing quarantine certificates to these high-risk contacts,
- referring certain workers to undergo a COVID-19 test, according to the testing strategy determined by the competent authorities. If he considers it more appropriate, and provided that the appropriate personal protective equipment and testing materials are used, the occupational physician may administer the COVID-19 test himself (or by a nurse under his responsibility).
These tests may be carried out on the following employees:
- employees identified as high-risk contacts;
- employees for whom the occupational physician considers a test necessary to prevent an impending outbreak in the company (within the framework of cluster management);
- employees who usually do not live in Belgium and who only work here for a limited period, and of whom at least one shows symptoms or has tested positive for COVID-19 (in the context of cluster management);
- employees who have to go on a business trip abroad, which requires a negative COVID-19 test;
- employees in certain specific circumstances, following the decision of the competent authority and in consultation with the Federal Public Service Employment, Labour and Social Dialogue.
Of course, the employer and the employees must cooperate fully with the occupational physician and provide him with all necessary information (e.g. by reporting as soon as possible any contamination that could be relevant for preventing the spread of the virus on the work floor, by identifying high-risk contacts at work). This concerns not only contamination of employees, but also of customers and (sub)contractors.
Although the tasks of contact tracing, issuing quarantine certificates and referral for testing (in principle) fall within the services provided by the External Services for Prevention and Protection at work, the performance of a COVID-19 test is not covered and could thus be invoiced separately.
The General Directorate of Supervision of Welbeing at Work exercises supervision on the respect of these new rules. A breach of the rules constitutes a breach of the welfare regulations and is therefore punishable by an administrative fine of EUR 400 to EUR 4,000 or a criminal fine of EUR 800 to EUR 8,000.
If the breach results in health damage for an employee, the sanctions can even go up to a prison sentence of six months to three years (although this seems mainly theoretical to us) and/or a criminal fine of EUR 4,800 to EUR 48,000, or an administrative fine of EUR 2,400 to EUR 24,000.
The experts of our employment team are ready to assist you on any possible questions or concerns you may have on this subject!