Now that the content of the measures adopted by the Belgian federal government in relation to the COVID-19 pandemic have been highly publicised by the media, the authorities are increasingly ensuring that these measures are enforced and complied with.
The Ministerial Decree of 23 March 2020 provides that infringements can lead to the sanctions as set out in article 187 of the Act of 15 May 2007 concerning civil security. These sanctions are imprisonment for a period ranging from eight days to three months and fines of up to EUR 4,000.
For employers, a violation of the measures adopted by the Ministerial Decree of 23 March 2020 will in almost every case also constitute a violation of the Act of 4 August 1996 concerning the wellbeing of employees during the performance of their work. This Act sets out a number of very general safety obligations, which will most certainly be violated in the case of a violation of the governmental measures adopted in relation to the COVID-19 pandemic. A violation of the Act of 4 August 1996 can lead to a criminal fine of up to EUR 8,000 or an administrative fine of up to EUR 4,000 per worker involved (with a maximum of EUR 400,000 representing a workforce of 100 workers).
A far more severe sanction applies if the public prosecutor can establish (1) a violation by an employer, (2) an accident or health damage to a worker, and (3) the fact the latter was caused by the former. If an employer is convicted on the basis of a violation of the Act of 4 August 1996, it cannot be excluded that an order imposing the closure of the business be handed down. Such closure could be for a period of one month, up to three years. Another possible sanction could be a ban on the exercise of certain professions for a period of up to three years.
The role of the social inspection
With regard to workplaces, the social inspection services have the powers to enforce the legislation in general and the health and safety measures in particular. It is important to bear in mind that the social inspection services have extremely wide powers, as they have a right of access to all places where persons are working and they can impose “appropriate prevention measures” if they think it is necessary in order to prevent situations that could be dangerous for the health and safety of the workers.
The social inspection services have published a checklist.
It is advisable to carefully examine this checklist, as it may help prepare for possible future inspections and adopt the necessary measures that the social inspection services may impose should they consider that a particular situation could be a source of danger for the health and safety of the workers. The social inspection services do indeed sometimes impose very strict deadlines for complying with the requested measures. Moreover, the checklist covers a number of issues which should be addressed by employers and that are not related to the measures adopted by the government in connection with the COVID-19 pandemic.
The role of the police
The monitoring and the enforcement of the measures adopted by the government in connection with COVID-19 is also a task entrusted to the police forces - not only in the public areas, but also on private premises such as business offices or plants.
On 25 March 2020, the public prosecutor published its guidelines on the enforcement of these COVID-19 related measures.
In these guidelines, the public prosecutor points out that under the Act of 5 August 1992, police officers have the right to access any building if
(i) the person living in the building agrees, or
(ii) “when the danger they are informed of threatens the life or the physical integrity of persons and that the danger cannot be avoided by using other means”.
According to the public prosecutor guidelines, such could be the case if a violation of the COVID-19 related measures is suspected. Police officers may therefore enter any office building or plant to verify whether COVID-19 related measures are violated or not.
Annexed to these guidelines is a memorandum summarising the instructions for police officers. According to this memorandum, a police officer should ask for the following documents when investigating the compliance with COVID-19 related measures by a company in the critical industries:
- the advice by the prevention consultant on the COVID-19 related measures,
- the risk analysis,
- the applicable prevention measures.
It is thus strongly advisable to ensure that these documents are immediately available should an inspection take place. The risk analysis referred to in the memorandum, is the risk analysis specifically covering the risks relating to the spread of the COVID-19. This being said, employers who are running a COVID-19 risk analysis may also consider taking the opportunity to run an up to date risk analysis covering all other risks as well.
The memorandum also mentions that if a first violation is noted in a company active in one of the critical industrial sectors, a second inspection visit should be planned. Should a violation be noted at the second inspection, temporary closure of the company will be the recommended sanction on the basis of the Act of 4 August 1996.
For companies whose activities are not critical, a similar approach should be followed. However, for those companies, the closure after a second infringement will be justified on the basis of the Decree of 23 March 2020.
Both the social inspection services and the police have substantially increased their visits to companies in order to monitor the compliance with the COVID-19 measures and to impose sanctions in case of a violation. It should also be noted that certain employees and unions are using the website www.meldpuntsocialefraude.belgie.be to report infringements to the authorities in order to trigger a social inspection. Employers should therefore ensure proper compliance with the COVID-19 related measures, particularly those relating to social distance and wellbeing.