COVID-19 - Belgium - Employer verification of temps in target sectors

As part of some new measures that aim to reduce the further spread of the Covid-19 virus, the Belgian government has recently imposed a new record keeping obligation upon certain employers and users who are temporarily relying on foreign employees or self-employed individuals. In-scope employers and users also have to verify whether the foreign employees and self-employed individuals have duly completed the Passenger Locator Form. These new obligations apply from 24 August 2020 until 30 September 2020 (but may be subject to extension).

Which employers? Not all employers employing foreign workers or calling upon the services of self-employed individuals fall within the scope of the new record keeping obligations. The obligations only apply to employers active in the construction, cleaning, meat, agriculture and horticulture sectors and only relate to the workers or the self-employed individuals, living or residing abroad, that these employers temporarily call upon for the performance of works in Belgium. Furthermore, the new obligations do not only apply to employers but extend to users, who fall within the scope of the new rules. A user is defined as any natural or legal person with whom or for whom employees or self-employed individuals work or supply services directly or indirectly (such as in a subcontractor set-up).

Which information? An employer or user falling under the scope of the new record keeping obligation should collect the following data from any foreign worker or self-employed individual that it temporarily relies on:

• general identification data (first name(s), last name, birth date, national number or bis-number, place of residence during the execution of the works in Belgium);
• a phone number the worker or the self-employed individual can be contacted on; and
• to the extent it applies, a list of individuals with whom the worker or the self-employed individual works.

This data can only be used for purposes related to the fight against the Covid-19 virus and its further spread, including tracing and investigating clusters located at the same address.

How long? This data should be kept from the start of the work on Belgian territory up to and including the 14th day following the work's termination. Upon the expiry of that period, this data must be destroyed.

Penalties? Non-compliance with these newly-introduced obligations may be subject to a level 2 penalty based on Article 238 of the Social Criminal Code, ie an administrative fine ranging between EUR 200 and EUR 2,000 or a criminal fine ranging between EUR 400 and EUR 4,000. The fine is multiplied by the number of employees involved.

Employers and users active in the relevant sectors should ask the foreign workers and self-employed individuals for all the relevant data and should proceed with a Passenger Locator Form compliance check, and this prior to the start of the works in Belgium. This obligation also applies between indirect contractors in a subcontractor chain.

Please do let us know if you would like more detail on this.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.