Covid-19 coronavirus: HR impact in Belgium after 12 March 2020

• The reinforcement of the recommendation relative to working from home arrangements;
• The suspension of teaching activities at schools; and
• The mandatory (partial) closure of specific establishments and cancellation of recreational activities.

Working from home

One of the measures announced by the Belgian federal government on 12 March 2020 is that, whilst everyone should continue to work insofar as possible, telework arrangements must be promoted and reinforced.

This essentially means that every Belgian employer is strongly encouraged to facilitate employees working from home where this is possible. In practical terms, in accordance with guidance issued by the Belgian Federal Public Service Employment, Labour and Social Dialogue, this can be achieved by encouraging employees to telecommute within an occasional telework arrangement:

• In the context of this type of arrangement, the employer and employee agree that the employee will work from home (or any other location of his choice) whilst staying connected using IT technology.
• The parties are generally free to make practical arrangements relative to the telework scheme, but must in any event agree the following aspects of the telecommute:

o The equipment and technical support that will be put at the disposal of the employee working from home. As a general principle under Belgian employment contracts law, the employer is required to provide the employee with such equipment as needed by the employee to perform their job. In the context of a telecommute scheme, the employer could for example be required to provide the employee with a laptop and/or a cell phone.

o The employee’s reachability when they are working from home. In this regard, it should be noted that whilst the employee is required to (continue to) respect applicable rules in relation to daily and weekly working time and subject to business needs, they are generally free to organize their work as they see fit. In other words, whilst they will be required to work the agreed amount of hours per day and/or per week, employees who telecommute are generally not required to fully conform to their normal schedule. This freedom to organize work is of course subject to the employer’s business needs, which means that an employer may require telecommuting employees to be available at such times when this is necessary in view of its business operations and/or business requirements.

o The reimbursement of expenses that are linked to the employee telecommuting. Note that, whilst the parties must come to an agreement on this point, there is no actual obligation for the employer to reimburse such expenses. In other words, the parties can also agree that expenses linked to the telework scheme will not be reimbursed by the employer.

Although no mandatory formalities apply, it is of course advisable to confirm such agreement in writing. In practice, employers could also consider to set out the conditions for occasional telework in a company-wide policy, which they can subsequently ask employees to accept in view of telecommuting.

As a final remark in this regard, it should be noted that some legal scholars have argued that occasional telework is technically also subject to the more stringent rules in relation to home work (“huisarbeid”/“travail à domicile”). Aside from the fact that this argument is disputed by other legal scholars and is moreover ostensibly difficult to reconcile with the legislator’s intentions (ie that the introduction of occasional telework should not raise unnecessary administrative burden), full compliance with these rules on home work may however make the introduction of occasional telecommute schemes at very short notice very cumbersome.

• Relative to employment terms and conditions, Belgian law provides that the occasional telecommuter has the same entitlements and is subject to similar workload and performance criteria as employees who (continue to) work in the employer’s offices. The employee will also be covered by the employer’s occupational accident’s insurance.
• In terms of control, the employer of course retains its employer’s authority throughout the telecommute arrangement being in place. In this regard, this is no different than when the employee would work in the employer’s offices. This also means that a number of specific control/surveillance mechanism (eg IT and/or CCTV/webcam monitoring) will be subject to the same limitations as apply when such mechanisms would be put in place at workplace.

Suspension of school teaching activities

A second measure taken by the Belgian federal government is the suspension of school lessons as of Monday 16 March 2020 until 3 April 2020 (ie the start of the Easter holidays). A childcare service will however be maintained at the schools for parents who work in specific sectors (such as the security and medical sectors) and for working parents who have no other alternatives. Nurseries will remain open.

In terms of dealing with such situation, the first thing to be noted is that this situation will not likely be accepted as a force majeure situation. Typically, for force majeure to exist, it is necessary that there are no alternatives at hand for the employee to continue working, as was the reasoning of the National Employment Office during the (limited) school closures in 2015 following the Brussels terror attacks. To the extent that schools provide childcare (and it seems that this will be an obligation mandated by the government), force majeure and temporary unemployment due to force majeure seems unlikely to be accepted. The only likely exception to this is where schools would not organise childcare and the employee can provide a certificate in this regard. In the meantime, the National Employment Office has confirmed that employees who remain at home to take care of their children due to the suspension of school teaching activities, will not be eligible for temporary unemployment due to force majeure, considering that all schools must provide for childcare. Of course, it remains possible that this position may change in the future.

In summary, options for employees who are impacted by the suspension of school teaching activities are as follows:

• Employees can send their children to the childcare organised by the school if they are unable to find other suitable childcare.
• Family leave which allows employees to take up unpaid leave for urgent reasons up to 10 working days. Questions can however be raised on whether the situation is unforeseen and urgent enough to qualify for such leave, considering the fact that there will be childcare provided at the schools. Nevertheless the rules on family leave provide some flexibility to employers relative to whether or not to allow employees to take up such leave, especially considering the fact that the leave is in principle unpaid. We do note that it is possible that a more extensive family leave arrangement is set out at company or sector level, so it is important to also check sector and company arrangements before taking any decisions in this regard.
• Employees can request to take up parental leave or time credit to take care of their children (age restrictions apply). This can be taken up either part-time or full-time and, following recent changes, parental leave can also be taken up in weeks rather than in months.

Of course, normal conditions, including seniority requirements, to qualify for these types of leave arrangements will continue to apply. Next, note that the employee should in principle request such leave several months in advance, which would not be very practical in the case at hand. Employers can however agree to reduce this period to allow employees to take up leave at very short notice (even one day in advance). Another issue to bear in mind is the existence of a cap in companies with more than 10 employees which makes that only 5% of employees can take up time credit at the same time (exceptions and specific calculation methods apply). This cap can only be changed via a sector CBA or (if this possibility is not excluded by a sector CBA) a company CBA or via a change to the work regulations.

Employees are not entitled to salary during parental leave or time credit leave, but they can apply for time credit or parental leave allowances, paid out by the National Employment Office.

• Working from home can be encouraged (as explained above).
• Temporary part-time work schedule can be agreed via an annex to the employment agreement.
• This can also allow employees to set up some creative schemes between parents where they organise a rotation system of private childcare.
• Employees can request to take up paid or unpaid leave.

Mandatory (partial) closure of specific establishments and cancellation of recreational activities

As part of the package of new measures aimed at facilitating social distancing in view of stemming the new coronavirus outbreak, the Belgian federal government has mandated (starting 14 March 2020 and ending, in principle, 3 April 2020) the closure of most hospitality establishments (ie, amongst others, night clubs, bars and restaurants) and the cancellation of all leisure activities regardless of size and regardless of their public or private nature.

This measure is expected to result in employers who are impacted by this measure to not be able to offer work to (most of) their employees during this period. Moreover, other employers may be affected by the slow-down of economic activity (eg suppliers) and may also have difficulties to maintain employee activity.

Against this background, the National Employment Office has indicated on its website that the novel coronavirus outbreak may (depending on the circumstances) result in a situation where the employer can apply for the introduction of temporary unemployment due to either force majeure or economic reasons.

The main distinction between these two systems is that an application for the introduction of temporary unemployment due to force majeure can be made by any employer, regardless of their underlying financial-economic situation, and for all of its employees, while the introduction of temporary unemployment due to economic reasons is subject to further limitations. In effect, temporary unemployment due to economic reasons for white-collar employees is only possible if the employer has already met the preliminary conditions for using temporary unemployment due to economic reasons. The measure must in that case be provided for in an industry-wide collective bargaining agreement, a company-wide collective bargaining agreement or an approved business plan. In addition, the company must be in difficulty due to either a 10% decrease in return, production or orders, or a degree of temporary unemployment of at least 10%. Companies that do not meet these conditions, but are recognized by the Belgian Minister of Work as a company in difficulty, are also eligible. For the avoidance of doubt, note that the procedural requirements (CBA or business plan) also apply in that case.

Under both schemes, it is the employer who needs to introduce the application (ie employees cannot themselves apply to receive temporary unemployment benefits). In particular, the employer must submit an electronic declaration to the competent unemployment office as quickly as possible and submit a written request for recognition of the temporary unemployment situation. The Belgian National Employment Office normally takes its decision within 3 to 4 days. For more information, click here.

In respect of the current Covid-19 outbreak, the Belgian National Employment Office has indicated that it will consider applications for temporary unemployment for the period up until 3 April 2020 (force majeure due to mandatory closures or cancellations) and 30 June 2020 (economic reasons).

Where the Belgian National Employment Office approves the employer’s application (whereby the approval will by definition be for a fixed term subject to potential renewal), relevant employees will be entitled to temporary unemployment benefits (paid through state social security) of 70% of the employee’s normal salary (increased from 65% until 30 June 2020) and capped at 1,928.33 EUR (gross).

Aside from temporary unemployment, the Belgian government has also taken other measures to support companies that are affected by the new coronavirus outbreak. In particular, payment facilities will be offered in relation to social security contributions (first and second quarter of 2020) and tax (VAT, company tax, tax withholding, etc.).

What’s next?

Covid-19 is now at the top of the agenda for businesses globally and in Belgium, for good reason.

We have also prepared a checklist: 10 key points you may consider for effective contingency planning as well as a note, in relation to HR-related questions for employers in Belgium in view of the novel coronavirus outbreak.

In light of the Belgian government measures announced on March 12 2020, and the significant impact that the Covid-19 crisis may have on our economy and your business, we will keep you fully updated on a regular basis with more detailed analysis of the issues and the solutions to deal with these issues.

If you would like to discuss any of the points covered in our publication in more detail, please let us know.

Note: this publication was drafted taking into account the situation surrounding Covid-19 as on 16 March 2020.