As from 30^th August 2021, employees of establishments receiving the public must be in possession of a health pass in order to work. Failing this, their employment contract may be suspended.

What is the “health pass”?

“Health pass” is to be understood as either:

• A negative PCR test result
• Proof of Covid-19 vaccination status
• A recovery certificate after having tested positive for Covid-19
• A specific document in the event of a medical contraindication preventing vaccination

Which places and events are concerned?

The presentation of a health pass is mandatory in places and during events with a higher risk of virus transmission, namely:

• Places of activity and entertainment, notably conference rooms, shows, cinemas, exhibits, festivals, sporting events, zoos, theme parks, trade shows and exhibitions, and professional seminars with more than 50 people taking place outside company premises, etc.
• Social places, notably bars, cafés and restaurants,
• Health facilities,
• Long distance public transport,
• Large shopping centres (retail space >20,000m²)

In these places, those in possession of a health pass will no longer be required to wear a mask. However, the organiser, the operator and the prefect have the possibility of making this mandatory.

Staff working in these establishments are not concerned by this waiver of the obligation to wear a mask.

As from when?

As from 9^th August 2021 for the general public in the places and during the events set forth hereinabove.

As from 30^th August 2021 for employees working in these places and at these events.

As from 30^th September 2021, the health pass shall be mandatory for minors aged 12 years and above.

Who is concerned?

The professionals concerned by the obligation to present a health pass are employees, volunteers, service providers, agency staff and sub-contractors, unless their activity takes place in areas that are not accessible to the public or outside of public opening hours.

Staff carrying out deliveries or emergency procedures are not subject to the obligation to present a health pass.

Must the ESC be consulted?

In relevant companies with at least 50 employees, the employer must inform and consult the ESC on the implementation of means to verify the health pass, if this implementation impacts the organisation, management and general running of the company.

The ESC is informed as soon as the measures are implemented. This information triggers the one-month consultation period. The employer shall then have a month to convene the ESC and receive its opinion on the implemented measures.

What can be done if an employee refuses to provide a health pass?

As from 30^th August 2021, an employee without a health pass may, in agreement with their employer, use their contractual days off or paid holidays.

In the event of the employee’s failure to present a health pass upon their return, the employer may notify them by any means, on the same day, of the suspension of their employment contract until the presentation of a health pass. During the suspension of their employment contract, the employee will not receive any wages.

In the event that the contract is suspended for longer than a period equivalent to 3 working days, the employee shall be convened to a meeting by the employer in order to assess the ways in which to regularise their situation.

How can the employee’s situation be regularised?

The employer has the possibility of transferring the employee to a position that does not require the presentation of a health pass. Although this is a possibility, everything must be done to regularise the situation and, in the event of a dispute, the search for a potential transfer will be one of the elements that the judge may take into account.

Until 15^th November 2021, the employer may compel the employee to work from home, if their activities are suited to this working method.

In the event of a continued stalemate, the employee may be dismissed on grounds recognised by the ordinary laws governing contract termination, for example, due to a prolonged period of absence.

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