Up Again Belgium: Premises and Workplace

Employment

1. What are the key things that employers have to consider in relation to social distancing in the workplace, e.g. open plan or spacing of desks, use of shared equipment, limited access to communal facilities, canteen / restaurant, etc.?

These will depend on the type of activities of the employer.

In general, compliance with the distance restrictions (1.5 m between each employee at all times) is the key requirement. To do so, employers are advised to use physical barriers or, if not possible, markings or tape to delimit areas or places, or mark the distance on the ground. The social distancing rules apply to all areas of the workplace (not only the actual work post, but also, for example, corridors, dressing rooms, etc.) and all other aspects of the work (for instance also transportation organised by the employer).

Collective prevention measures should be given preference over individual prevention measures.

As such, the employer should adjust the working place to ensure physical separation between workers to the extent possible, for example by creating sufficient distance between workstations.

If this is not possible, the office should be organised so that sufficient distance is maintained between employees (e.g. using only certain desks in open spaces, or reorganising workstations or placing them in separate rooms).

Only where these collective preventions measures aren’t possible is the employer allowed to provide alternative prevention measures offering the same level of protection, for example by imposing the use of masks in the limited cases where social distancing cannot be ensured.

2. What key hygiene and/or infection prevention measures will employers have to take to ensure a safe workplace e.g. provision of adequate handwashing facilities, regular deep cleaning of offices, etc.?

Employers must take the following measures to ensure workplace safety:
  • Invite employees to wash their hands regularly with liquid soap and water, even if they are wearing gloves, and to wash them properly.
  • Provide means for washing (preferably with liquid soap and water) and drying (paper towels, no towels, no electric hand dryer) and/or disinfecting hands
  • Check which products are suitable as soap, hand gel (hydroalcoholic) or disinfectant: not all products are compliant or suitable – if in doubt, contact the occupational physician.
  • Provide paper wipes.
  • Raise awareness of the need to cough or sneeze into a tissue or elbow (e.g. through posters), and dispose of used tissues immediately.
  • Provide appropriate containers for the collection of materials (waste) used for individual and collective hygiene purposes, such as tissues, cloths and used protective equipment.
  • Ensure the workplace and workstations are properly cleaned and that cleaning is carried out between work periods.
  • Clean work equipment
  • Pay particular attention to vending machines, rest and lunch areas and other areas reserved for customers.
  • Also pay attention to door handles, handrails, lift buttons, light switches, cabinet and drawer handles, washbasin taps, appliance and machine control buttons, and other frequently touched areas.
  • Ensure regular and sufficient ventilation of workplaces and social facilities, either by natural or mechanical ventilation.
  • Provide hand gels or appropriate disinfectants in areas where hand washing is not possible, preferably in dispensers that should not be touched.

These measures should be included in the risk analysis conducted by the employer. Particular attention must be given to the cleaning of objects likely to be touched by many people, for example door handles, printers and coffee machines.

The employer should determine whether it is possible for employees to avoid contact or from touching these objects. If this is not possible, the employer must determine how often these objects should be are disinfected.

Real Estate

3. Are there any specific obligations, liabilities or duties of conduct imposed on landlords, tenants or visitors with respect to the use or re-use and decontamination of premises; care, cleaning and maintenance of the exclusive and common areas; reporting requirements and/or measures in case of identified infections; health and safety issues - e.g. recommissioning water systems to avoid virus, installation of plexiglass screens, moving desks to comply with distancing. remodulation of fire prevention strategies (entrance/exit routes)? Is any distinction made between asset classes?

Landlords should comply with all the rules covered above regarding their staff’s safety, if they are employing staff in their own building.

If they are employing staff in their own building, the landlords should also agree on prevention measures with any other employers in their building, for example to ensure all employers apply the same measures regarding entry to / exit from the premises and the common parts.

These obligations are merely an application of pre-COVID-19 legislation. No new or additional obligations have been introduced in this respect regarding COVID-19.

The Belgian authorities have enacted a generic guide for combatting the spread of COVID-19 at work. It provides guidelines in preparation for a safe resumption of the activities in the buildings. Though these guidelines are not compulsory, employers are strongly encouraged to follow them.

4. Are there any rent suspension measures and/or stay of recourses and actions (including eviction) or any Government support initiatives such as a furloughed building grant scheme (if so, maybe only a part of the building should be re-occupied)? When rent suspension measures are available, what is the usual payment mechanism and timing agreed to by the parties?

There is no rent suspension measure.

Pursuant to the Royal Decree nr. 15 of 24 April 2020, from 18 March 2020 until 17 June 2020, lease agreements concluded before 24 April 2020 cannot be judicially terminated for reasons of default of payment (rents or charges), provided that the defaulting tenants are not already in a state of (cashflow) insolvency on 18 March 2020.

5. Are there specific tax reliefs on payment or collection of rent instalments? Do they apply subject to actual payment or regardless? Do they apply generally or only to specific asset classes?

Pursuant to the Royal Decree nr. 15 of 24 April 2020, from 18 March 2020 until 17 June 2020, any seizure for collection of rent is prohibited against enterprises which are not already in a state of (cashflow) insolvency on 18 March 2020.

No precautionary or executive attachment on the enterprises’ assets will be possible. Any means of enforcement will be suspended, except for attachments on immovable property.

6. Are there any measures regarding relief from the performance of real estate-related contractual obligations?

See questions 4 and 5 above.

7. Are there any credit facilities in place to mitigate loss of income for landlords?

There are no specific credit facilities in place, but landlords remain allowed to contact banks or financial institutions regarding general credit facilities to mitigate loss of income

8. Is there any relief from loan repayments / enforcement of loans secured against properties?

With regard to loan repayments, an agreement has been reached between the Belgian federal government and the financial sector, with the support of the National Bank of Belgium.

Belgian banks agreed to grant special terms of payment to viable non-financial companies, SMEs, self-employed persons and nonprofits encountering COVID-19-related financial difficulties, by extending loan and credit facilities repayment dates for a maximum of six months without additional costs or charges.

A deferral of repayment only applies to the repayment of principal amounts due under certain loans and credit facilities. Interest payments remain due and payable. A deferral is granted for a maximum period of six months or until 31 October 2020, at the latest. When the deferral period is over, repayment obligations will resume.

Regarding immovable seizures, see question 5 above.

9. Are public services necessary to complete the sale, acquisition or other operation of real estate assets or companies or to establish the right to open for business (planning authorities, notary public, Land Registry, Companies’ Registry, etc.)?

Yes, but these public services are treating any requests in this context with major delays, which could delay the completion of real estate operations or the opening of new businesses.

10. Are there any specific processes or protocols available to consummate real estate operations enabling them to comply with any required social distancing (e.g. electronic signature, etc.)?

Preliminary sale and purchase agreements, lease agreements and other agreements which do not require any specific form (and thus can be signed without notary involvement) are not problematic. Signing occurs by exchange of correspondence (e-signature although possible not very common practice in Belgium).

For agreements requiring notarial support, parties need to sign individually in the presence of a notary. Security measures should be applied at notarial offices, including compliance with social distancing of 1.5 m, and appointments are required.

But to avoid the presence of parties before a notary, the Belgian Government and the federation of notaries have implemented a system of digital power of attorney (allowing the parties to give a power of attorney to a person present at the office of the notaries to sign on their behalf – so there is no travel to the office) and the signing occur through videoconference.

11. Are contractors who were carrying out works within the premises obliged to resume them? Can building sites reopen when they were closed down? Are there any specific provisions in relation to certain asset classes authorising continuation / resumption of works (e.g. healthcare structures)?

Construction activities have never been formally forbidden, but specific safety measures had to be complied with on site (mainly social distancing).

After the COVID-19 outbreak, almost all contractors and developers decided to stop work at their construction sites, but most of them have since decided to resume construction works as of 4 May 2020.

When resuming construction works, contractors and developers must implement specific safety measures on site (mainly observing social distancing).

Additionally, almost all contractors and developers are invoking force majeure to negotiate, with the principal:

  • a postponement of delivery terms;
  • the non-application of penalties and termination rights; and
  • an increase of the agreed turn-key consideration to cover extra-costs.

Where the agreements do not expressly cover a pandemic event, the case law developed on force majeure will usually provide the contractor with a relatively strong position for the first two bullets above – but not the third.

12. Are there remedies or contractual arrangements available to address impossibility or delay for a party to handover premises to another which are/were to be constructed or refurbished, or for such other party to take over those premises?

Agreements may provide for contractual penalties to be paid in case of late handover/takeover of premises.

13. Has the duration of validity of administrative authorisations pertaining to development/construction of real estate assets (in particular planning authorisations) been extended?

No.

Litigation and Regulation

14. Is the use of disclaimers for visitors or others coming on to the site of business useful for limiting potential future COVID-19 claims?

A disclaimer could be useful, but is definitely not a panacea. To allow a waiver of liability, the disclaimer must be clearly phrased, and it will need to be proven that the site effectively mentioned this disclaimer and that the person accepted the disclaimer. The disclaimer may be contradicted by the exact facts. If, for instance, a sign in a store states that customers are to maintain distance and that the store owner cannot be held liable if customers do not comply, this disclaimer will be ineffective if the store is organised in such a way that it is impossible to keep a distance or if too many customers are being allowed to enter the store.

A disclaimer should be only part of a series of measures taken to limit potential claims.