• ‘Blended assignments’ are an emerging trend in international mobility that combine working from home with regular business trips abroad, but this requires careful consideration of cross-border issues.
• The habitual place of employment is an important factor in determining which country’s labor law is applicable. Mandatory rules of the host country may apply when the employee is abroad.
• Belgium’s mandatory work-from-home rules have been extended until May 31, 2021, and employers have new reporting requirements to comply with.

In January, we already discussed some trends in international mobility after COVID-19 and Brexit (in this article). We highlighted the trend of a new scenario for international mobility, the so-called 'blended assignment'.

Blended working refers to mixing onsite and offsite working, which is possible through use of modern information and communication technologies. The trend towards ‘blended assignments’ combines virtual working from home (home country) as a home or teleworker with regular business trips abroad (host country). In this context, cross-border issues might arise in terms of applicable social security law, employment law and, in some cases, immigration rules. In addition, the cross-border situation could have tax consequences (switch/increase/decrease of individual taxation, permanent establishment issue), which will not be addressed in this article.

Employment law

A first point of attention in any cross-border employment situation is determining the applicable employment law. Indeed, in most European jurisdictions, teleworking is regulated and specific conditions apply to employment agreements for teleworkers.

In the case of our ‘blended assignment’, we feature an employee working from home, in combination with regular short assignments abroad. In this type of scenario, we consider that the home state of the employee is also the place of habitual employment.

Habitual place of employment

From a labor law viewpoint, the provisions of the national labor law of the home state will in principle apply.

In respect of the Rome I Regulation, the mandatory provisions of the law of the country of habitual employment have to be complied with as minimum standards, even if there is a choice in favor of some other legal system. If there would be a closer connection of the employment relation to another country, the mandatory provisions of that country’s law apply (as minimum standards).

A Belgian example: A logical choice is to choose the law of the country of habitual employment as applicable. If the employee's home and place of habitual employment is Belgium, regardless of any choice for foreign laws, the mandatory provisions of Belgian law need to be respected as minimum standards. Assuming the choice is made for Belgian law, the employment laws of the home state, i.e. Belgium, fully apply.

Looking at the Belgian legislation, specific rules apply for teleworking with a differentiation depending on the type of telework: homework, structural telework, occasional telework, COVID-19 telework (not to speak about exceptional telework not regulated by law but often applied in companies). In the context of the COVID-19 pandemic, many countries have taken measures to enforce working from home – where possible – on their territories. We will explore this specific form of telework later.

In a Belgian context, it is important to distinguish between homework and telework and to determine which type of employment contract is needed. We will not address occasional telework, as the scenario of the ‘blended assignment’ implies regular telework.

Structural telework (in comparison with homework) is a form of organizing and performing work using information technology where work, which could also be performed at the employer’s office, is performed outside of that office on a regular basis. Structural teleworkers fall under the rules of Collective Bargaining Agreement (CBA) 85 and are not subject to the rules for homeworkers. (However, if an employer has no premises in Belgium at which the employee could perform the work, the employee can still be considered a homeworker and the specific regulations of the Act of July 3, 1978 on homework apply.)

Both structural telework and homework require a formal, written agreement which must mention the specific elements determined by law.

Assignment abroad

In our ‘blended assignment’ scenario, for the work performed abroad in the context of short-term international assignments – postings or even business trips – certain rules of national employment law in the host country need to be respected as minimum standards if more protective of the rights of the employee than of the law chosen or of habitual employment, i.e. in most cases the law of the home country. We refer to the mandatory and overriding mandatory rules of the host country (in that respect the EU Posting Directive and its implementation in the host state will be instrumental).

In a reversed situation, where the employees' home and habitual place of employment is outside of Belgium and the employee is performing short-term assignments in Belgium, certain rules of Belgian law can become applicable in respect of home/teleworking.

Indeed, an employer who temporarily employs a person in Belgium is obliged, for the work performed on the Belgian territory, to comply with the work and salary conditions imposed by:

• provisions that are criminally sanctioned; and
• collective labor agreements that have been declared to be generally binding by Royal Decree, with the exception of rules imposing supplementary pension schemes.

These rules include: working time, minimum wages, public holidays, minimum duration of paid vacation, well-being at work (also for telework), protection of pregnant employees, non-discrimination, rules on temporary work and the lending of employees. Also included are the rules on structural telework of Collective Bargaining Agreement 85, which have been declared generally binding (or the mandatory rules of the Act of July 3, 1978 in case of homeworking).

It will be important that the contract for a ‘blended assignment’ provides, on the one hand, a clause whereby the employee may be asked to travel (the place of employment being an essential element) and, on the other hand, complies with possible home/teleworking mandatory legislation of the country where the home/telework is being performed.

COVID-19 teleworking rules

In the current context, we cannot miss out on the recent rules that were adopted for COVID-19 telework.

Indeed, as a temporary sanitary measure in the context of the COVID-19 pandemic, a Ministerial Decree still provides an obligation to work from home. This applies to all companies and staff members in Belgium, unless impossible due to the nature of the function or for business continuity reasons. This is the case until May 31, 2021. Only certain essential sectors and businesses are excluded.

If teleworking cannot be applied, staff members must be in possession of an appropriate certificate or other evidence issued by the employer that confirms the need for their presence at the workplace.

Also, as from April 1, 2021, all employers with staff in Belgium, except those obliged to be completely closed, are required to make a monthly declaration on COVID-19 telework through an online portal on the website of the National Social Security Office.

This declaration concerns the number of employees on the first working day of the calendar month and must be submitted at the latest by the sixth calendar day of each calendar month, as long as the measure remains in effect.

The following details must be provided:

• If the company has one or more establishments;
• The number of persons employed by the employer on the first working day of the month;
• The number of persons employed who exercise a function that cannot be performed in the context of telework (situation on the first working day of the month).

Also, on January 26, 2021, after more than ten months of COVID-19 telework without any specific legal framework, Collective Bargaining Agreement 149 was concluded. The CBA is only of a supplemental nature, meaning that agreements on teleworking which existed before January 1, 2021, remain applicable.

According to these supplemental rules, for every COVID-19 teleworker, agreements have to be made regarding the provision of equipment and technical support including, if agreed upon between the parties, the reimbursement of costs.

Regarding working time, in absence of a different agreement, the COVID-19 teleworker should in principle follow the same work schedule as in the office, but the parties can have different agreements. In that context, the framework also devotes attention to hours during which the employee may not be reached – referring to a sort of right to disconnect.

Of course, obligations on well-being at work for teleworkers and employee monitoring, with respect to privacy laws, are also addressed in these rules.

Cross-border activities

The application of the teleworking rules in a cross-border context also requires particular attention.

For employees habitually working in Belgium, under an employment contract ruled by Belgian law and who are now working at home abroad due to different circumstances linked to COVID-19 (quarantines, travel limitations, etc.), the foreign rules in respect of home/telework will in principle also apply to their Belgian employers.

In such a scenario, it may well be that the employment contract is not adapted to the regulations of the country where the home/telework is being performed and so is not compliant. In the reversed situation, it may be that the worker's employment contract, stuck in Belgium at his/her residence, is not compliant with the Belgian mandatory rules in respect to home/teleworking (see above).

However, in case some home/telework was already performed in the home country (state of residence) and the contract was already adapted to the local home/telework legislation, and taking into account the supplemental nature of the rules in CBA 149, the foreign law may provide a sufficient framework for the telework. This should be assessed in each specific scenario.

As home/telework is due to gain importance, the compliance with these rules will become increasingly important.

Blended assignment and social security

The scenario of the ‘blended assignment’ can also have an impact on applicable social security. In the event of habitual employment in one country, under the EU social security coordination rules, temporary posting to different Member States while remaining subject to the laws of the normal work state is possible.

Also if an employee works in multiple EU Member States simultaneously (more than marginal activities, i.e. more than 5%) and performs a substantial part of the work in the state of residence – as will be the case when habitually working from home – the social security laws of that state will apply in respect of the EU regulations.

Teleworking in the home state is 'substantial' where it takes up at least 25% of the employee's normal working time or salary. This means that if an employee works from home for more than five days each month, the social security law of the employee's residence state will apply (within an EU context). This will also be the case for an EU-UK context, based on the Trade and Cooperation Agreement concluded in the context of Brexit.

It is important for employers to be aware that when an employee works from home abroad (i.e. outside the normal work state) for more than 25% of the time, the social security law applying to the employee may change if that employee's residence is different from the normal work state or states.

However, regarding COVID-19 telework, many Member States have indicated that they will not take into account periods of telework performed on their territory due to COVID-19 to claim application of their own social security regime. Belgium has confirmed that this neutralization period applies from March 13, 2020 until June 30, 2021 and may be subject to extension.

Conclusion

International mobility is surely changing due to the COVID-19 pandemic, and it will be difficult to close the door on teleworking post COVID-19. An interesting solution for international companies may be to consider these types of ‘blended assignment’ scenarios. However, telework in a cross-border context can have wide-sweeping consequences for both employee and employer. It is therefore advisable to prepare ahead and investigate the consequences and conditions for each specific scenario, taking into account the different jurisdictions that are involved, and to determine whether this option is the most favorable for both parties.