Getting back to work, safely and legally

The Belgian Government has announced the gradual exit from lockdown, but what does this mean for companies in Belgium? We asked Stefan Nerinckx, Partner and Head of Employment Law at Fieldfisher in Brussels, to tell us more:

1) WHAT DOES THE GOVERNMENT'S EXIT STRATEGY LOOK LIKE IN BELGIUM?

The exit strategy from Belgium's current COVID-19 confinement was presented by the government on April 24, 2020. The timetable presented for phasing out the restrictions was indicative only, and the measures applicable for each phase need to be enacted by appropriate legal instruments.

By Ministerial Decree published on April 30, 2020, a first step in phasing down the current measures was taken on May 4, 2020. While home-teleworking remains the favored option, from a legal perspective it moved from an "obligation" to a "recommendation". This means that, at least until June 8, 2020 (start date of the currently planned final phase), home-teleworking will remain recommended – but it is not the only measure governing the organization of work. Furthermore, in our opinion, general employment laws continue to apply to home-teleworking.

This means that industrial and B2B service companies, where telework is not possible and which cannot meet the requirements in terms of physical social distancing, can reopen provided that they are able to apply a series of health recommendations, including wearing a mask (see the Corona exit guide for more details).

In essence, it is now up to companies to determine the best way of providing a safe work environment, in consultation with their employees (or their representatives).

In terms of temporary unemployment, the application of the simplified procedure for the granting of temporary unemployment by force majeure as a result of COVID-19 (initially foreseen until April 19, 2020) will be applicable until June 30, 2020.

• An exemption of taxation for voluntary overtime (up to 220 hours) in 'critical sectors' until June 30, 2020; 'critical sectors' are defined by the Ministerial Decree of March 23, 2020.
• Relief measures on the ban on permanent workers from other companies being made available to employers in 'critical sectors' (until June 30, 2020 – for more details, see question 2).
• A special scheme of temporary work is also introduced for 'vital sectors'; it concerns only the 'vital sectors' determined by the Ministerial Decree of April 27, 2020.
• Consecutive employment contract for a determined period in 'critical sectors' under strict conditions until June 30, 2020.
• Neutralization of the working hours of students in the second quarter of 2020.
• From a tax and social security perspective, certain deadlines for declaration have been extended and payment extensions can be requested (by companies experiencing difficulties as a result of COVID-19).

2) WHAT ARE THE MEASURES RELATED TO EMPLOYMENT LAW TAKEN BY THE BELGIAN GOVERNMENT TO RE-ACTIVATE THE ECONOMY AFTER THE LOCKDOWN?

1.   Social distancing

In principle, the employer has the following general obligations:

(1) Obligation to analyze health and safety risks in the workplace and to take necessary measures in this regard (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).

As indicated above, home-teleworking currently remains recommended as the standard method of work. The measures regarding home-teleworking are discussed in more detail in question 3 below.

For all functions where home-teleworking is not possible or not applied by the employer, respecting the 1.5m social distancing rule remains an obligation where working arrangements allow it. In this context, employers must take the necessary preventive measures to adapt the workplace for the return of employees. For industry and "B2B" functions where both home-teleworking and 1.5m social distancing is impossible, as of May 4, 2020, a return to work is allowed provided that adequate safety measures have been put into place.

Belgian social partners have prepared a non-mandatory general guide on protection and prevention for employers to determine the preventive measures they should take (Corona exit guide). This guide is dynamic and designed to evolve in line with the current situation. It gives general recommendations for the organization of work within a company, including information regarding the home-to-work commute, welcoming of workers, adaptation and information in the workplace itself, etc.

The guide also contains special recommendations regarding working time. Breaks should preferably be taken in shifts in order to avoid gatherings in the break room as much as possible; start and finish schedules should be modified so as not to make all workers' arrival and departure times coincide; and companies should even provide for different teams, with the same individuals always working in the same group and at the same time, in order to limit the number of workers who interact with each other.

Specific guides or protocols at a sector level may be used in addition to the foundations of this general guide. (Agreements have already been concluded in following sectors: textiles, garages, bodywork, metal trade.)

In companies where social distancing is not possible, employers must take the necessary preventive measures to offer at least an equivalent level of protection.

It is important to remember that the employer is required to involve the internal protection and prevention service (IPPS) when developing and implementing new work safety measures (art. I.2-10 WWC), and, except in cases of justified emergencies, the employer must also inform and request a prior opinion from the Committee for Prevention and Protection at Work ("CPPW"; art.II7.-14, 15, 19 WWC). Considering the urgency, the Ministerial Decree of March 23, 2020 (adapted on April 30, 2020), provides that the work safety measures must be adopted via a process of social consultation, or at the very least, with the involvement of the IPPS.

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 home-teleworking cost allowances if agreed with the employer (not mandatory for this kind of home-teleworking).

2.   Secondment ("putting at disposal") of staff between companies

The Royal Decree no. 14 of April 27, 2020 introduced a regime of "putting at disposal of workers", also called "lending of employees", whereby the employer's authority is exercised by another company. Due to this new regime, applicable from April 1 to June 30, 2020, all employers can put their workers at the disposal of companies recognized as being in "critical sectors" (health, food, hospitality, security, transport, media, energy, waste collection and treatment services, etc.).

Only "permanent" workers (no interim/replacement contracts) hired before April 10, 2020 may be deployed by signing, before the start of the posting, a contract between (1) employer, (2) the employee, and (3) the "user" company in a "critical sector".
The employee should receive at least the salary and benefits applicable in the "user" company, and the latter will be responsible for the application of work safety laws and will be jointly and severally liable for the payment of any remunerative benefit arising from the “lending” process.

3.    Special conditions on employment contracts for a limited duration

In principle, concluding successive limited duration employment contracts is sanctioned by the conversion of the employment relationship into an open-ended contract (certain exceptions apply).
However, Royal Decree no. 14 provides that concluding employment contracts of a limited duration, between April 1 and June 30, 2020 of at least seven days, only in "critical sectors", will not be sanctioned by the conversion into a contract for an undetermined period.

3) HOW SHOULD COMPANIES CONTINUE TO ORGANIZE TELEWORKING AFTER THE OBLIGATION - IMPOSED BY THE GOVERNMENT - TO HOME-TELEWORK ENDS?

The announced exit strategy considers that, also after May 4, 2020, home-telework will be the standard. As a result, employers should organize home-teleworking where this is possible.

The legal framework that imposed an "obligation" on employers to organize telework moved to a "recommendation". Even if the amended wording of the Ministerial Decree of March 23, 2020 is ambiguous, it is clear that there is a legal difference between the current situation (telework being "recommended") and the situation until May 3, 2020 (telework being "obliged").

As the legal obligation to apply home-telework where possible is not formally extended beyond May 3, 2020, employers are, as of that date, no longer able to refer to the previous obligation of home-teleworking.

The existing legal framework for home-teleworking is thus not adapted to the current situation. As a result, in the absence of an extension to the legal obligation to organize home-teleworking, it would seem that an employer could only refer - to oblige an employee to home-telework - to the general health and safety obligations incumbent upon them (keeping in mind that home-telework, from a legal perspective, is "recommended"). In consultation with the prevention advisor, home-teleworking could then be continued as part of the company's measures on health and safety at work (part of the deemed adequate prevention measures).

In any case, employers will have to take appropriate actions regarding the organization of home-telework in their company in consultation with employees and employee representatives.

4) IF A COMPANY HAS DIFFICULTIES WITH RESTARTING ITS BUSINESS, WHAT GENERAL LEGAL (EMPLOYMENT LAW RELATED) OPTIONS ARE AVAILABLE TO REDUCE COSTS?

1.   Apply for economic unemployment (general scheme)

Once the current flexible and exceptional scheme of unemployment for COVID-19 force majeure has expired (on June 30, 2020, unless extended), the undertakings will have to revert to the normal unemployment schemes.

One of those unemployment schemes is unemployment for economic reasons.

An employer may apply for the scheme of unemployment for economic reasons when it is temporarily unable to provide work for its employees due to a reduction in turnover, production, customers or the number of orders.

Unemployment for economic reasons is subject to different conditions for blue-collar and for white-collar workers, and the regime and consequences are also different. For example, for white collars, the employer must prove either (1) a drop of at least 10% of the orders, production or revenues, or (2) at least 10% of temporary unemployment among blue collars, or (3) being recognized as a company in difficulties.

Moreover, for white-collar employees, a collective bargaining agreement at the sector or company level or, in the absence thereof, a collective plan, must be drawn up prior to lodging the application for temporary unemployment.

In order to enable the undertakings to accelerate their application, the Collective Bargaining Agreement no. 147 ("CBA 147"), entered into at the level of the National Labor Council, provides that companies that are affected by COVID-19 can base their application on CBA 147. As a result, those companies do not have the obligation to negotiate a collective bargaining agreement or collective plan prior to their application. This specific measure, aiming to accelerate and facilitate the application for temporary unemployment for economic reasons for white-collar employees, is only temporarily applicable until June 30, 2020.

The special coronavirus crisis procedure provides for a prior information and consultation obligation that must be complied with 14 days before the application of the temporary unemployment.

Both for white-collar and blue-collar employees, the unemployment scheme is limited in time, as the duration of the suspension of the employment contract cannot exceed 16 weeks per calendar year in case of a complete suspension and 26 weeks in case of a partial suspension.

The employees are entitled to temporary unemployment allowances for the days of unemployment, capped at 65% of their average daily remuneration (70% until June 30, 2020).

2.    Encourage part-time work

When temporary unemployment for economic reasons cannot be applied, the employer could encourage his or her employees to temporarily work part-time.

Employees can make the choice to reduce their working time by 20% or 50% in the frame of a parental leave or a time credit, provided of course, they fulfil the legal conditions to apply for one of such schemes.

Under certain conditions, they will be entitled to respectively a parental leave or time credit allowance from the National Employment Office.

The employer and employee can also agree to reduce temporarily the working time outside the above mentioned schemes.

For companies located in the Flemish region, there is an incentive bonus to encourage employees to work part-time in order to avoid redundancies. This incentive, which is a monthly premium for the employee between €68 and €172, has temporarily been extended to companies that, as a result of the corona crisis, experience a decrease of at least 20% in turnover, production or orders in the month preceding the interruption compared to the same month in the previous year. This extension is applicable from April 1, 2020 to June 30, 2020 at the latest.

Similar incentives could be put in place at Federal level or at the level of the other Regions. However, at this time, no concrete information is available in this respect.

3.    Corona parental leave

On May 2, 2020, the Council of Ministers approved corona parental leave for the period of May 1 to June 30, 2020. This leave allows workers with at least a one-month employment contract, with the employer's agreement, to reduce their employment by 1/5 or half to take care of children who have not reached the age of 12. Adoptive parents and foster parents can request this leave as well.

Corona parental leave is not deducted from the regular parental leave credit. It is an additional leave. It comes with a higher (gross) allowance than that granted for ordinary parental leave (25% more). The application procedure is shorter than for ordinary parental leave with the employee needing to, in principle, give three working days' notice to his/her employer. Workers who currently benefit from regular parental leave may also convert their current leave into corona parental leave.

4.    Apply flexible work schedules

If the business cannot immediately re-start normally, but if it is expected that there will, on the contrary, be a peak in the business in a few months, the employer can apply flexible work regimes.

The flexible work regimes enable the employer (within certain limits that can vary from sector to sector) to have his or her employees work less in a certain period on the basis of a reduced work schedule and work more in another period on the basis of a peak work schedule, without having to pay overtime.

If the work regulations do not yet provide for flexible work regimes, they must be introduced in the work regulations. To amend the work regulations, a specific legal procedure must be complied with, implying, if applicable, a consultation of the Works Council or the employees.

5.    Restructuring

If it is expected that business will not resume at a normal pace in the medium- or long-term, dismissals could be considered, in order to save the company and, hence, a certain level of employment.

Whether linked or not to the coronavirus crisis, the legal provisions regarding dismissals must be complied with, including the legal notice period or payment of a corresponding severance indemnity.

If an employer plans to perform several dismissals at the same time (or within a period of 60 days), they must check whether the restructuring plan falls under the legislation on multiple dismissals (at sector level) or collective dismissal, which triggers compliance with the mandatory prior information and consultation procedure. This prior information and consultation procedure can result in a social plan negotiated with the unions. A specific collective dismissal premium might be due to the employees dismissed in the frame of a collective dismissal (specific thresholds apply).

The thresholds for the application of the rules on information and consultation in the event of a collective dismissal are the following :

• Undertakings that employed, on average, in 2019 more than 20 and less than 100 employees: as from 10 employees.
• Undertakings that employed, on average, in 2019 at least 100 and less than 300 employees: as from 10% of the number of employees.
• Undertakings that employed, on average, in 2019 at least 300 workers: as from 30 employees.

A company should also check whether other specific rules exist at sector level on multiple dismissals/collective dismissals, which also trigger the compliance with a mandatory prior information and consultation procedure. Please note that a proper preparation detailing and identifying  all the legal issues is essential. 

5) ASPECTS OF EMPLOYEE PRIVACY AT THE WORKPLACE AFTER COVID-19

The COVID-19 crisis does not alter the principles and rules on which the protection of employees' privacy is based. Regardless of the technology, the tools and the third-party providers that are being used, companies which offer homeworking tools to their employees must ensure that the processing of their employee data complies with the principles and rules under the General Data Protection Regulation (GDPR) and must also be aware of the specific rules that govern employees’ privacy under national laws. We have elaborated on this in our previous article.

Authorities have been talking for some time about a general app that would be recommended by the legislator to trace COVID-19 infected/immune persons. To make this app operational, an enormous amount of data needs to be available, more specifically personal data (such as name, address, telephone number, ...), special categories of personal data (such as health data, ...) and the location details of the data subject. Privacy would therefore be at stake. If such an app were available on the market, can an employer make the use of such an app mandatory in the workplace?

The employer would then be able to identify an infected employee and could:

• Ask the employee to leave the workplace and contact the occupational physician;
• Find out which colleagues the infected employee has had contact with;
• Notify co-workers who may be at risk of infection.

Given that the app concerns the processing of personal data, the GDPR applies without any doubt, which means that any data controller (i.e.: the manager or controller of the app - the employer) will have to base the processing of this data on a legal basis. Given the current health crisis, the employer may in principle have the possibility to base the processing on the fulfilment of its legal obligation to protect public health or on the protection of the vital interests of its employees. As such there might be a legal basis for an employer to have its employees use the app, at least for the time being and only for the purpose of protecting its employees.