Do not forget to provide any of your employees who must be present in your workplace with a document to certify this fact

Belgium is, for the second time, in lockdown. The new Ministerial Decree of 1 November 2020 stipulates that, as from today until 13 December 2020, all workers are obliged to telework. However, an exception applies when either the employee’s role or the continuity of business operations, activities and services does not allow for teleworking. In such a case, the employer must provide the worker with a certificate or other supporting document attesting that his/her presence in the workplace is needed. The ability to arrange for occasions on which workers could return to the company premises, which was provided for in the Ministerial Decree of 18 October 2020, has been deleted.

In addition to bars and restaurants, non-essential shops have now also been forced to close down during this lockdown period.

Teleworking is compulsory unless the employee’s role or business continuity does not allow for teleworking

The new Ministerial Decree now explicitly stipulates that teleworking is compulsory.

However, two exceptions are provided for. These are:

• If the employee’s role does not allow for telework, OR
• If the continuity of business operations, activities and the provision of services does not allow for telework

If a worker is covered by one of these exceptions, then the employer must provide him/her with a certificate or other supporting document attesting that his/her presence at the workplace is needed.

On the basis of the current legal texts, there is no official template document that should be used in this respect. Any written document attesting to the need of the employee’s presence at the workplace will do. The employee must carry such a document with him/her.

The Minister of Internal Affairs has already announced that inspections will be organised; so if your company requires the presence of certain workers in its workplace for one of the two reasons set out above, it is highly recommended to provide these workers with a certificate as soon as possible.

If work is organised at the company premises, then such work must comply with the rules on social distancing and the Ministry of Employment’s ‘generic guide’ and sector guides. An updated version of this generic guide was published on the Employment Ministry’s website on 30 October 2020.

In our view, based on a literal reading of the Ministerial Decree, it can be debated whether so-called ‘vital companies’ listed in an annex to the Ministerial Decree and manufacturers, suppliers and (sub)contractors that are essential to the activities of these undertakings are excluded from the rule that teleworking is compulsory.

In addition to bars and restaurants, also non-essential shops have been now forced to close down

• While bars and restaurants have been closed since 19 October 2020, they are allowed to offer takeaway meals until 10 p.m. each day.
  
  Hotels may remain open, but as from today, their restaurants must close.
• The additional lockdown measures now provide that also the following companies must close:
  
  
  • all shops, with the exception of shops selling essential goods, such as food stores, animal food stores, shops for hygiene products, pharmacies, newspaper stores, book stores, petrol stations (and fuel suppliers), do-it-yourself stores (DIY), garden centres and flower shops.
    
    However, shops that have to close may still deliver goods to their customers or have their customers collect pre-ordered goods in the open air (e.g. at the shop’s doorstep).

• all companies and organisations belonging to the cultural, festive, recreational, sports and events sector.

The ALTIUS Employment Team is available to assist employers in setting-up and implementing a (temporary) telework regime as well as with the drafting of a certificate attesting that an employee’s workplace presence is essential.

Written by

• Philippe De Wulf

  Partner

• Esther Soetens

  Counsel