Covid-19 telework : points of attention for employers

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Esther Soetens

Managing Associate

 

On 27 March 2020, the National Security Council decided to extend the urgent measures to limit the further spread of Covid–19 to at least until 19 April 2020. This extension implies that telework remains the mandatory standard working regime for employees employed by companies with non-essential activities, as defined in the Ministerial Decree of 3 April 2020. For employees employed by companies with essential activities or by companies active in crucial sectors, telework is strongly encouraged and should be implemented ‘as far as possible’. We are seeing in our daily practice that many employers have a lot of questions regarding the so-called “Covid-19 telework” regime’s practical implementation. Herewith a selection…

 

  • Can employees refuse an imposed “Covid-19 telework” regime?

Employees cannot legitimately refuse a “Covid-19 telework” regime imposed by the employer (as the employer and the employee must comply with the National Security Council’s measures). Strictly-speaking, this change comes down to a change of the employee’s place of work, which would, under normal circumstances, require the employee’s consent.

It may be that some employees prefer to continue to come to the office (e.g. because they do not have the appropriate office tools available at home, because they cannot perform in an efficient manner with their children playing around them, etc.).

Employers can prohibit such employees from coming to the office. The fact that the "social distancing”-rule can be complied with at the office is not a valid argument that the employee can invoke to continue working at the office.

 

  • Is it necessary to formalise the telework regime?

As the National Security Council obliges employees to work from home, entering into an individual annex to formalise the telework regime is legally not required. The “Covid-19 telework” does not qualify as telework in the sense of CBA n° 85 as the requirement that telework should be structural is not met. The “Covid-19 telework” has an exceptional and incidental nature, even if this regime remains in place for several weeks.

Therefore, the “Covid-19 telework” regime resembles more closely the “occasional telework” regime as implemented by the Act on Practicable and Flexible Work in 2017.

Companies already having a “general framework on occasional telework” in place can rely on this general framework for the modalities of the “Covid-19 telework” regime if this is suitable to deal with the current situation (e.g. in terms of the ICT and technical support that the employer offers or the possible cost reimbursement arrangement).

If no such general framework applies or if the already existing framework is not suitable in the opinion of the employer, then it is, strictly-speaking, required to agree with the employee about three key features: (i) the possible ICT and technical support that the employer offers, (ii) the possible reachability of the employee during the telework, and (iii) the possible cost reimbursement arrangement.

It can be an option to enter into an individual annex if the employer prefers to clearly set out some key principles (which may be useful in companies without a telework culture and where employees are not familiar with teleworking) as well as the three legally required key features. Clearly, this option comes with an administrative burden.

By way of alternative, and taking a more informal approach, the employer can also decide to proceed with a minimal formalisation (e.g. an email) mainly relying on the employees’ implied consent. We see in practice that many employers are relying on this approach.

 

  • Is the employer obliged to provide a cost allowance to employees?

Employees now forced to work from home might incur some additional costs that are directly related to the “Covid-19 telework” (e.g. heating costs, electricity costs, costs for office equipment, etc.). An employer is, from a strict legal perspective, not obliged to reimburse these costs or to provide for a lump-sum cost allowance.

That being said, many employers are providing a cost allowance. In this respect, it is worth noting that the social security administration (“RSZ”/“ONSS”) has issued specific instructions setting out the framework within which employers can grant their employees a net cost allowance.

We summarise the key principles below:

  YES                  
  • An employer can grant its employees a lump-sum expense allowance of EUR 126.94 net per month. This allowance covers specific costs incurred by the telework (e.g. heating, electricity, small office equipment, etc.).
  • Employees using their personal PC can receive an additional allowance of a maximum of EUR 20 net per month to compensate for the use of their personal PC for professional purposes.
  • If employees also use their own personal internet connection, then an additional allowance of a maximum of EUR 20 net can be paid as well.
  • If an employee incurs other professional costs (e.g. the employee needs a second computer screen or needs a scanner), then such costs can be reimbursed by the employer based on the actual costs. For this type of costs, no specific lump sum allowance applies.
 NO

   In the framework of a “Covid-19 telework” regime, the employer cannot pay a cost
   allowance equal to 10% of the gross monthly salary of the employee.

   The social security administration (“RSZ”/“ONSS”) explicitly excludes this possibility.

 

  • Is there any margin to increase the telework cost allowance for employees who already worked from home prior to the Covid–19 outbreak?

Some employees already worked from home on a structural basis (e.g. during 1 or 2 days per week) prior to the Covid–19 outbreak and receive from their employer a cost allowance.

As they are now working from home on a full-time basis, the cost allowance does, in the employee’s opinion, no longer cover all the costs incurred. Can an employer in such a scenario increase the cost allowance or combine it with the specific Covid–19 arrangement?

The following combination is possible:

Arrangement applying prior to the Covid–19 outbreak

Additional arrangement during the mandatory “Covid-19 telework”

An employee structurally works from home during 3 days per week. This telework qualifies as telework in the sense of CBA n° 85.

The employee receives a cost allowance of 10% of the gross monthly salary prorated according to the 3 days’ telework per week.

The employee can continue to receive the pro-rated 10%-allowance for the 3 days of telework in the sense of CBA n° 85.

For the other 2 working days, the employee can receive an additional allowance of EUR 126.94 net per month, preferably prorated. Indeed, caution is needed as the combination of both regimes may not lead to an unbalanced situation in which total expense allowances that an employee receives are not in line with the actual costs incurred.

 

The following arrangement is not possible:

Arrangement applying prior to the Covid–19 outbreak

Additional arrangement during the mandatory “Covid-19 telework”

An employee structurally works from home during 2 days per week. This telework qualifies as telework in the sense of CBA n° 85.

The employee receives a cost allowance of 10% of the gross monthly salary prorated according to the 2 days’ telework per week.

The employee can continue to receive the pro-rated 10%-allowance for the 2 days of telework in the sense of CBA n° 85 but the employer cannot apply the “10%-allowance” for the additional 3 teleworking days under the “Covid-19 telework” regime.

 

  • Additional points of attention include:
  1.  If any documentation is prepared providing for specific “Covid-19 telework” modalities, then it is recommended to communicate clearly that this telework regime has an exceptional and temporary nature only and that the “Covid-19 telework” regime ceases once the sanitary measures no longer apply.

  2. To the extent the company already has a teleworking policy in place providing for specific features governing structural telework (e.g. specific cost reimbursement modalities), it is highly recommended to review such a policy to avoid that employees who now exceptionally work from home under the temporary “Covid-19 telework” regime could suddenly argue that they are entitled to certain benefits and/or advantages based on the already existing teleworking policy for structural telework for the future.

 

The ALTIUS Employment Team is available to help employers assisting in setting-up and implementing a temporary telework regime.

 

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 concern you.

 

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