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Working through COVID-19: Human Resources FAQs

by Stefan Nerinckx, Partner Employment Law, Fieldfisher Belgium

In today’s blog post, Stefan Nerinckx of Fieldfisher provides an overview of the government measures taken so far in Belgium to address the COVID-19 outbreak, with a special focus on human resources topics.

What is the Belgian Government's response to protecting workers as a result of the coronavirus outbreak?

As of Tuesday, March 18, 2020, the legislator has taken some measures to protect citizens, such as closing certain businesses like bars, cafes, restaurants, discotheques and non-food shops, banning all cultural and sport-related activities and regulating other specific activities. In essence, the legislator has divided the private sector into business and activities which are essential and those which are not essential (the list can be found in the Ministerial Decrees). For essential businesses, the employer must, to the extent possible, make use of home-teleworking and must make sure the employees who come to work are protected to the utmost on the work floor, including by introducing social distancing measures. For non-essential businesses, (i) a specific  mandatory home-teleworking regime has been put in place for all job functions where it is possible; for job functions where (ii) home-teleworking is impossible, strict social distancing measures have been enacted (minimum 1.5m between each person). Companies labelled as non-essential where neither home-teleworking, nor social distancing measures are possible (iii) must close. These measures will remain applicable until April 19, 2020 (with the possibility of further extension).

Following the new regulations, all contractual workers whose contract is totally or partially suspended because of these decisions can be granted temporary unemployment allowances for ‘force majeure’ or 'resulting from economic reasons' until April 5, 2020. (Although some measures have been extended beyond April 5 – at present until April 19 – the extension of these measures has not yet been enacted at the moment this article was published, but we can expect that they are going to be extended too.)

Examples of force majeure are workers whose contract is suspended because their employer stopped activities due to the general closure measures (e.g. they were suppliers of those industries) or because their activity depended on external suppliers which stopped their activities because of the COVID-19 crisis; these workers are eligible for temporary unemployment allowances. Also, workers who are quarantined by foreign authorities or whose flight back to Belgium is cancelled because of the pandemic are entitled to temporary allowances for ‘force majeure’.

In addition, an employer who, due to a significant drop in their turnover, production, customer base or orders due to the coronavirus, is temporarily unable to offer work to their employees may, under certain conditions, take advantage of the system of 'temporary unemployment for economic reasons'.

However, the National Unemployment Office (RVA/ONEM) states that even if the lack of work is due to economic circumstances and not to force majeure, it is advisable to introduce the request on the basis of the simplified (new) scheme for temporary unemployment due to force majeure (FAQ RVA/ONEM – March 27, 2020). Of course, the lack of work must be related to the COVID-19 crisis.

The procedure of requesting temporary unemployment allowances has been simplified (electronic only), and the amount of all allowances for force majeure has been raised from 65% to 70% of the salary, capped at 2,794 gross per month, until June 30, 2020. As such, employees receive a daily gross allowance between €55.59 (minimum) and €74.17 (maximum). Employees who are made temporarily unemployed due to force majeure (reason 'coronavirus') will also receive a supplement of 5.63 gross per day, payable by the National Unemployment Office, in addition to the unemployment benefit.

Furthermore, the government also made some decisions to help companies in need. The social security authorities for salaried workers (NSSO) will grant payment delays to employers facing financial difficulties related to the crisis. These payment plans cover the first and second quarter of 2020. This measure is subject to a special request towards the NSSO.

Certain support measures were also set up for self-employed workers who are experiencing financial difficulties as a result of the crisis (most of them are subject to a special request and to certain conditions):

  • The deferral of the payment of social security contributions and the waiving of surcharges;
  • Reduction of provisional social security contributions;
  • Exemption from social security contributions;
  • Self-employed workers who find it necessary to interrupt or stop work because of the COVID-19 crisis will be able to stop the payment of social security contributions, while retaining a number of rights.

Is an employer allowed/obliged to pay a supplement to the unemployment benefits?

Under the regime of temporary unemployment due to force majeure, there is currently no legal obligation to pay a supplement to the unemployment benefit. However, the employer is free to grant such a supplement voluntarily, provided that they do not discriminate between employees.

Under the regime of temporary unemployment for economic reasons, the employer is in some scenarios obliged to pay a supplement on top of the unemployment benefit for each day not worked. The amount is either provided for in a sectoral collective bargaining agreement (CBA) or, failing this, in a company CBA/company agreement.

In its most recent interim administrative instructions (dated March 20, 2020), the NSSO confirmed that the  supplement mentioned above, regardless of whether it concerns a situation of economic unemployment or force majeure, is exempted from social security contributions. However, the NSSO emphasized the following condition: the sum of the unemployment benefits and the supplement to be paid by the employer may not result in the employee receiving a net amount higher than the amount (s)he would receive by working normally.

Please note that a supplement to the unemployment benefits will be taxed at the normal tax rates and withholding tax rates, i.e. the same as applicable to the regular income. Moreover, this additional supplement will be added up with the other taxable professional income to determine the final tax.

What considerations should employers take into account when allowing employees to work from home?

Structural and occasional teleworking is regulated by Belgian law. The employer and the employee must agree on several matters, such as the moments of availability of the teleworking employee, the technical material made available by the employer to the employee, as well as possible reimbursement of costs.

The Ministerial Decree of March 18, 2020 introduces the concept of ‘home-teleworking’, which is a concept of compulsory telework that technically did not yet exist in Belgian law. The current regulation introducing home-teleworking does not specify whether modalities need to be determined between parties; we, however, strongly suggest putting in place an employer's notice with some rules to be obeyed during the home-teleworking (such as confidentiality at home, availability of the employee during the day, the possible reimbursement of costs, etc.) as well as for the employer to adapt some internal policies (e.g. the privacy policy stating the changes operated during full-time home-teleworking). Special attention needs to be given to insurance policies, especially industrial accident insurance.

Employees should be reminded that during telework they should perform their duties/function as usual. The employer may as such ask the employees concerned to be available during normal office hours. Employers are reminded that – based on the employment law Act of July 3, 1978 – they have the obligation to provide the work tools, so that during this ‘telework at home’, the employer should in principle provide all the necessary equipment (including computer equipment) or provide compensation if the worker uses their personal equipment.

Whether a reimbursement of other home-teleworking costs is compulsory is debatable; if any compensation is granted by the employer, it can be made on a lump sum basis bearing in mind that the National Social Security Office generally accepts the exemption of fixed telework expenses up to 10% of the remuneration earned while teleworking.

It is possible that the legal framework for this specific form of telework will be further developed by legislation in the coming days (not enacted yet at the moment this article was published).

Working from home: will employers continue to pay employees who work from home?

Employees who work from home are not affected with respect to their salary-related rights and are paid the full salary by their current employer, plus teleworking cost allowances if agreed with the employer (not mandatory for this new kind of teleworking).

What should employers do when employees cannot work from home and their place of work may have to be temporarily closed?

For functions that cannot be performed from home and when performing them from the usual workplace is also made impossible (because social distancing and safety considerations cannot be respected), the employer will have to close down the premises.

If a force majeure kind of situation occurs, temporary unemployment allowances can be requested.

If economic reasons are involved, the employer can start a process to invoke ‘temporary unemployment for economic reasons’ and ask for temporary unemployment allowances.

Eventually, if none of these situations are encountered and the employer wants to close the premises by themselves just as a preventive measure, no unemployment allowances can be applied for. In this situation, it is advised to conclude an addendum to the employment contract with the agreement of both parties to suspend the employment contract. Under Belgian law, it is indeed an obligation of the employer to provide the employee with work and salary, and any unilateral modification without a force majeure type of reason is not permitted and could lead to constructive dismissal.

In case teleworking is not possible, can the employer oblige the employee to take vacation or working time reduction (RTT/ADV)?

Under Belgian law, the employer is not allowed to impose vacation days. The decision to take holidays is a decision taken by mutual consent. The employer, however, has the obligation to make sure the employee can take his/her holidays.

Furthermore, in case of unemployment for force majeure and if vacation days have been planned by the employee, the holidays will be suspended to the benefit of unemployment benefits.

The Belgian RTT/ADV regime is very specific, as these days have to be granted at the end of a specific reference period; if the employee still has RTT/ADV days at the end of the reference period (in many cases one calendar year) and the end of the reference period is approaching, the employer may consider requiring the employee to take RTT/ADV days.

What rights do employees have if they need to stay at home to look after children or dependents because schools or care homes have been closed?

Employees who must stay home to look after children can ask for occasional teleworking, even if the employer can refuse. However, home-teleworking has become mandatory in certain scenarios from March 18 until April 5 (19), 2020 (see questions 1 and 3), which would allow one to watch their children while teleworking.

Employees who, as a result of the suspension of classes in schools, stay at home only to care for their children, cannot for this reason be temporarily unemployed for reasons of force majeure.

It is only if it is clearly proven that there was no childcare and that the parent had no alternative, that temporary unemployment due to force majeure could be applied for or occasional teleworking (as care in schools is only provided for children whose parents work in the health care sector, work in essential public sector departments or when the parents have no other option than to send the children for care to their grandparents (regardless of their age).

In other cases where the employee still has to go to her/his workplace, (s)he can also take a maximum of 10 days per year of unpaid leave for ‘compelling reasons’, looking after children because of school closure being one of those reasons.

Can the employer require disclosing if an employee has symptoms of an infection by the virus or if they have already been diagnosed?

It is in principle not permitted to require an employee to disclose personal information, as it could violate the employee's right to privacy (art. 22 Constitution, 8.1. ECHR).

However, the employer has the following obligations: (1) Obligation to analyze health and safety risks in the workplace and take necessary measures to preserve it (art. 5, §1 of the Well-Being At Work Act ("WWA"), art. 20, 2° of the Employment Contracts Act ("ECA")), (2) Obligation to adapt those measures in case of situational change (art. I.2-3 Well-Being At Work Code ('WWC")) and to take measures to protect employees against chemical and biological agents (art.  I.2-7, al. 3, 5° WWC). The employee, on the other hand, has the obligation to refrain from doing anything that could be detrimental to the safety of his or her colleagues and to his or her own safety (art. 17, 4° ECA).

We are of the opinion that in view of the current pandemic, and given the employer's protection and prevention obligations, the employer is entitled to ask the worker to report whether (s)he is a carrier of this contagious virus or whether (s)he is showing symptoms.

In Belgium, employers are advised to recommend that workers who think they have symptoms should contact their doctor by telephone. If the employee feels fit to work and does not declare her/himself unable to work, the employer is in principle not allowed to ask her/him for a ‘certificate of capacity’. The employer may, however, always send the employee to the occupational physician (médecin du travail/arbeidsgeneesheer), who then will evaluate whether a medical examination should take place or not.

However, if the employer notices that the physical/mental condition of the worker increases the risks at the workplace, (s)he has to notify the occupational physician, who will decide whether a medical check-up is necessary (art.I.4-4, §2 WWC). The occupational physician and eventually the employer can oblige the employee to go home in the frame of the employer's obligation to protect the health of her/his employees.

In an international employment scenario, will the internationally applicable social security law be impacted if expat employees now work from their home in Belgium?

In the frame of international mobility and in view of the current pandemic, the increased use of telework as a result of government measures can be a source of concern for cross-border workers and companies with regard to social security. Indeed, the sudden increase in professional activities carried out from home could, in some cases, lead to a change in the applicable social security legislation.

In application of EU Regulation 883/2004 on the coordination of social security systems, a worker who resides in the EU, EEA or Switzerland and works in another is subject to the social security of the country of employment. However, in the event of substantial activity in the Member State of residence (i.e. at least 25% of working time), the latter State becomes competent, in application of the EU Regulation. Due to the increased use of teleworking as a result of the COVID-19 measures, the activity of such cross-border workers could quickly become substantial in the country of residence.

In view of the exceptional situation, the competent Belgian ministries for social security for employees and self-employed workers have decided that the periods of telework performed on Belgian territory by cross-border workers due to the coronavirus will exceptionally not be taken into account for the determination of the applicable social security legislation and that they will therefore have no influence on their affiliation to social security.

This measure will apply from March 13, 2020 (midnight) and for as long as the emergency measures taken by the Federal Government to limit the spread of the coronavirus are in force.

Obviously, it will also be relevant for many workers and companies in situations of employment in a cross-border context to check whether foreign social security administrations take a similar position.

What is the impact of the COVID-19 virus on the processing of employees' personal data?

The Chair of the European Data Protection Board (EDPB) has provided on March 16, 2020 a statement on the processing of personal information in the context of the COVID-19 outbreak. In summary, the EDPB has confirmed that employers will be able to process personal information in the context of pandemics like COVID-19, provided that they can rely on appropriate legal grounds such as reasons of public health or the protection of vital interests. In such cases, consent of the data subject will not be required.

The EDPB also comments on the use of electronic communication data (such as mobile location data) by public authorities and highlights that additional rules will apply if using this information. Public authorities should first aim to process such information in an anonymous way, and, if this is not possible, Member States can introduce legislative measures on the basis of national and public security, enabling authorities to use this information.

In Belgium, the main principles in respect of the protection of privacy on the work floor remain applicable. In that respect, articles 6 and 9 of the General Data Protection Regulation (GDPR) are most important.

The following main aspects need to be respected:

  • In principle, it is forbidden to process ‘special personal data’, and information relating to the health of workers in particular;
  • Exceptionally, the employer may process this type of data under strict conditions (e.g. the collection and retention of medical certificates for the purpose of carrying out the obligations in the field of employment law (art 9.2b GDPR), for the purpose of preventive or occupational medicine, for the assessment of the working capacity of the employee (art 9.2h GDPR), or for reasons of public interest in the area of public health (art 9.2i GDPR);
  • The employer must be transparent vis-à-vis the employees (i.e. adequate communication);
  • The employer must document its data protection policy (and possibly adapt it to the COVID-19 consequences related to home-teleworking);
  • In any case, the employer must respect the principles of proportionality and minimum data processing (i.e. is it effective and strictly necessary for me to process certain personal data in order to achieve the intended purpose, such as to guarantee the safety and health of the staff, to ensure the proper functioning and continuity of the company, etc.?).

The Belgian Data Protection Authority published advice for employers and employees in the frame of COVID-19. You can read more here: COVID-GBA/COVID-APD.

About the author

Stefan Nerinckx

Stefan Nerinckx is an Attorney and Partner, heading the Employment Law practice in Brussels and is the international practice leader for Employment Law at Fieldfisher. With more than 28 years of experience in (international) employment, social security and business migration matters, he covers the full range of individual and collective Labor and Employment Law. He is a prolific writer (e.g. co-editor of a legal journal), professor of employment law at the University College Brussels (Odisee/EMS-KUL) and a public speaker at conferences. He is for years praised by clients and peers in most legal guides such as Chambers, Legal 500, Best Lawyer's, Leaders League. For more information on this blog post, you can contact him at: stefan.nerinckx@fieldfisher.com

 

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