Until recently, when considering implementing a temporary unemployment regime within a company, employers could, depending on their specific situation, either apply for (1) the temporary unemployment regime based on “force majeure” or (2) the temporary unemployment regime based on “economic reasons”.
Applying for the temporary unemployment regime based on “economic reasons” triggers a formalistic administrative procedure. The decision as to whether an employer could enter into such a regime takes several weeks for white-collar employees. This differs from the temporary unemployment regime based on “force majeure”, which is less formalistic.
Due to the massive number of application files that the Belgian unemployment office “RVA”/“Onem” has received, on Friday 20 March 2020 the Federal Government decided to implement one temporary coronavirus unemployment regime based on force majeure. If an employer is faced with temporary unemployment due to the coronavirus breakout, then this situation is automatically considered as “force majeure”.
In the meantime, the “RVA”/“Onem” has further simplified the administrative procedure.
It is no longer necessary to actually apply for the temporary unemployment regime based on “force majeure” and await the RVA/ONEM’s decision.
Until 31 May 2020 (for the time being, but this could be extended), employers can automatically appeal to the new temporary unemployment system.
The only procedural step for the employer to take is to deliver a so-called ‘ASR Scenario 5’ (in Dutch)/‘DRS Scénario 5’ (in French) (see below).
2. Procedural steps to be taken by the employer
2.1 Delivering of an ASR Scenario 5/DRS Scénario 5
- The employer must deliver an ‘ASR Scenario 5’/‘DRS Scénario 5’ as soon as possible (i.e. as from the moment all the necessary information before the end of the month is available; the employer should not wait until the end of the month to take this step).
This step can be made by using the following web link:
- When completing the ASR/DRS Scenario 5 (where days can be entered retroactively up to and including 13 March 2020), it is important to refer to “coronavirus” when adding “force majeure” (‘overmacht’) under code 5.4 “nature of the day” (“aard van de dag”/“nature du jour”).
- Each month, the employer should proceed with a new ASR/DRS Scenario 5 notification.
- Employers who have already sent an application for temporary unemployment for reasons of force majeure (old regime) or for economic reasons and even received a decision can also switch to the new ‘coronavirus’ temporary unemployment scheme by simply filling in the ASR/DRS Scenario 5 as indicated above without having to make any further formalities. It is in such a case very important that you indicate ‘force majeure’ (‘overmacht’) - code 5.4 (with the motive ‘coronavirus’) given as the reason for temporary unemployment in the ASR/DRS Scenario 5 and not 'economic reasons'; if not, you will remain in the system of temporary unemployment for economic reasons.
2.2 Additional comments
- The employer is exempted from the obligation to issue a C3.2A form to the employee in the months of March, April, May and June 2020.
- During the period of unemployment, the employee is entitled to unemployment allowances. Until 30 June 2020, the monthly gross unemployment allowance is equal to 70% of the monthly average gross salary, capped at EUR 2,754.76. In addition, the employee will receive a supplement of EUR 5.63 per day of unemployment.These amounts are payable by the “RVA”/“Onem” and are subject to tax withholding (26.75%).
- To speed-up the payment of the unemployment allowances to all affected employees, the Federal Government has decided that all employees will immediately receive an advance payment of EUR 1,450 per month. The calculation of the exact amount (as well as the tax withholding) will be regularised afterwards.
- Under this temporary unemployment scheme, workers can alternate between unemployment days and working days. However, unemployment must always relate to a full working day. Therefore, a worker cannot be temporarily unemployed in the morning and work in the afternoon (or vice versa).
NEW ! The ‘Group of 10’, i.e. the national consultative body of employers and trade unions, has reached an agreement on a notification obligation for employers who want to call upon the temporary ‘coronavirus’ unemployment regime. On the basis of this agreement, the employer will be obliged to inform its employees in advance of the period to which the notification relates, as well as the planned unemployment days and the days on which the employee is expected to perform work. This notification obligation is individual, which means that it must be made by the employer vis-à-vis the individual employees. A collective communication is possible, but only if it is clear to the individual employee which working regime is provided for him/her. This notification must be made at the latest on the day prior to the commencement date of the temporary unemployment. If the employer does not comply with the notification obligation, then it cannot make use of the temporary ‘coronavirus’ unemployment regime.Afterwards, the employer must also inform the works council (or, in the absence thereof, the CPPW or the trade union delegation) about the use of the temporary unemployment. This measure has yet to be transposed into legislation by the Federal Government.
3. Formalities to be complied with by the employees
- To obtain the payment of unemployment allowances, an employee who enters into a temporary unemployment system for the first time should complete the form “C3.2 – Employee – Corona” (see link below) and deliver it to the payment institution of his/her choice (this can be the payment institution of one of the unions, ABVV/FGTB, ACLVB/CGSLB or ACV/CSC, or the public body, HVW/CAPAC): Dutch / French
- An employee, who would normally not be entitled to unemployment allowances because he/she does not meet the eligibility conditions, will exceptionally receive unemployment allowances during the months of February, March, May and June 2020.
If you have any questions or need assistance, the ALTIUS Employment Team is at your service.
The above information is merely intended as comment on relevant issues of Belgian law and is not intended as legal advice. Before taking action or relying on the comments and the information given, please seek specific advice on the matters that are of concern to you.