Due to rising infection rates and the observation that the most infections and clusters (apart from education) occur at work, the Belgian Conciliation Committee decided last week to maintain obligatory telework. The controls on telework will also be tightened and in order to facilitate these, an additional registration obligation for employers has been introduced.
In preparation for possible inspections, we provide an overview below of the current obligations that employers must respect in the framework of the obligatory telework.
Since the Ministerial Decree of 28 October 2020, teleworking is obligatory once more, unless it is impossible due to the nature of the function or the continuity of the business, the activities or the service carried out. In order to be able to determine for which functions teleworking is impossible, the employer must carry out a so-called ‘risk analysis of telework’. Concretely, this means that the employer must determine for each function which tasks can and cannot be carried out from home. In view of this and the frequency of these tasks, the employer can then determine for which functions teleworking is impossible.
This risk analysis needs to be distinguished from the general COVID-19 risk analysis that the inspection services expect from employers and thus focuses specifically on the (im)possibility of telework. The risk analysis should be submitted for advice to the internal/external prevention service, as well as to the Committee for Prevention and Protection at Work (CPPW) (or trade union delegation/employees in the absence of a CPPW).
From April 2021, all employers must report a limited amount of data to the National Social Security Office (NSSO) every month via the online tool on the NSSO’s website. Only employers who are currently obliged to be completely closed are exempt from this obligation.
Concretely, this concerns the following data:
The declaration refers to the number of employees on the first working day of the month (e.g., Thursday 1 April) and should be submitted by the sixth calendar day of the month (e.g. Tuesday 6 April). When a company has several establishment units, the declaration should be made per establishment unit.
The Social Security Portal (not available in English) provides instructions on how to register and what is meant by a non-teleworking function. For example, individuals who are exceptionally present on-site at the organisation (e.g., to print or to collect material) should not be counted in the number of non-teleworking functions. An important point is that temporary workers, structural personnel of another employer (e.g., subcontractors) and individuals employed on a self-employed basis within the company (e.g., consultants and partners) should also be counted when entering the above-mentioned numbers.
The inspection services will use the registered data as a reference in the framework of inspections. Anyone who has a teleworking function, but is still present at the organisation, must be able to justify his or her presence. In principle, the employer should be able to refer to the ‘telework risk analysis’ carried out.
For employees with a non-teleworking function, the employer must still provide a certificate confirming the necessity of their presence at the workplace. According to the Ministerial Decree, in principle, another piece of evidence could be given to these employees, but practice has shown that a clearly drafted certificate is the most common.
This certificate does not necessarily have to contain detailed reasoning as to why the employee cannot telework. However, in order to avoid discussions during an inspection, it may be appropriate to do so (at least in part). This also informs the employee of the reason(s) why teleworking is impossible. After all, we have noticed that inspection services also question employees during inspections, so it is advisable to inform employees properly and clearly.
When teleworking cannot be implemented, the employer must take the necessary preventive measures to ensure maximum compliance with the social distancing rules. An important nuance to be made in this context is that taking these preventive measures does not replace the obligation to telework.
By ‘necessary preventive measures’, the government means the safety and health regulations as stipulated in the General Guide, supplemented by the guidelines at sectoral and/or organisation level, or any other measures that offer equivalent protection. Preventive measures must also be taken with due regard for social consultation.
During inspections of preventive measures in the workplace, the inspection services currently focus mainly on taking measures to maintain ‘social distancing’, wearing masks when moving around and measuring/checking the quality of indoor air.
On 26 January 2021, the Collective Labour Agreement (CLA) no. 149 was concluded by the National Labour Council. It specifically deals with telework due to the COVID-19 crisis. This CLA has a limited period of validity and applies to companies which, on 1 January 2021, had not yet developed a regulation in accordance with the provisions of structural or occasional telework (see also our newsflash of 1 February 2021). It obliges employers, with respect for the rules of social consultation, to make agreements on:
In view of the increased supervision by the social inspection services of compliance with obligatory telework and the increasingly repressive approach to infringements (sanctioned with criminal or administrative fines), employers are well advised to check whether the various obligations concerning telework are (still) being complied with. The checklist above provides a useful guide. At the top of your to-do list should certainly be the mandatory monthly registration, which must be carried out for the first time by Tuesday, 6 April 2021 at the latest.