Belgium: Coronavirus and Employment Law FAQs

1 EXECUTIVE SUMMARY

In this FAQ we present concise answers to the most frequently asked questions by employers regarding the impact of the coronavirus on Belgian employment law. The conditions below represent the situation as of 8 April 2020.

2 PREVENTION MEASURES

2.1 WHICH PREVENTION MEASURES SHOULD THE EMPLOYER TAKE?

The  Federal  Public  Service  of Employment, Labour and Social Dialogue  (‘FPS Employment’) refers to the WHO recommendations, which enlists the following measures:

• Providing clean and hygienic workplaces (e.g. desks, keyboards) by disinfecting them regularly;
• the application of good hand hygiene by employees by providing hand disinfectants in visible places;
• providing good respiratory hygiene in the workplace by using paper handkerchiefs in case of coughing and sneezing;
• informing employees that it is better not to go to the workplace with symptoms of illness, such as cough and/or fever;
• providing telework;
• Providing instructions in case someone falls ill with a suspicion of having the coronavirus.

Find the full list of recommendations of the WHO here.

The Ministerial Decree of 23 March 2020 obliges companies who are active in non-essential activities to introduce telework (see 6.1). If telework, due to the nature of the work or the function is not possible, the company should impose strict social distancing measures in order for employees to respect a distance of a minimum 1,5 meters from each other. If this is also not possible, the company must close (See 5.2). These rules are not mandatory for companies active in essential activities (see 5.3), however these companies have to respect those rules as much as possible.

The FPS Employment also provides a prevention checklist which can be used (not mandatory): NL / FR

2.2 ON WHICH LEGAL BASIS CAN THE EMPLOYER TAKE PREVENTION MEASURES?

A number of corona measures at the workplace should be framed in the obligations of the employer with regards to health and safety at work. Two sources are important in this respect: the Employment Agreements Act of 3 July 1978, and the Act on the wellbeing at work of 4 August 1996 and the related Codex on Wellbeing.

Pursuant to Article 20.2° of the Employment Agreements Act, the employer is obliged:

“…as a prudent person, to ensure that the work is carried out under proper conditions with regard to the safety and health of the employee and that the first aids can be provided to him in the event of an accident.”

The Act on the wellbeing at work clearly indicates that the employer bears the ultimate responsibility for well-being at work. This responsibility is not affected by the fact that the employer (compulsorily) calls in internal or external experts. The fact that the employer cannot discharge this final responsibility is also made explicit in Article I.2-13 of the Codex.

2.3 SHOULD THE PREVENTION ADVISOR – OCCUPATIONAL PHYSICIAN BE INVOLVED?

The ‘prevention advisor – occupational physician’ usually plays an advisory role. However, when it comes to health assessments, this role is impossible to ignore. For example, according to Article I.4-4.- § 2 Codex on Wellbeing, the employer must notify the occupational physician if an employee complains of discomfort or if he finds that an employee’s physical or mental condition undeniably increases the risks associated with the workplace. In doing so, the occupational physician shall, in principle, independently assess whether an employee should be subject to a health assessment and whether measures can be taken to adapt working conditions.

However, all this does not detract from the fact that, pursuant to Article 20, 2° of the Employment Agreements Act, the employer also retains his own, albeit limited, power of appreciation to take any additional (or preventive) measures required prior to the intervention of the occupational physician.

2.4 CAN THE EMPLOYER TAKE THE TEMPERATURE OF EMPLOYEES?

First of all, the Belgian Data Protection Authority has stated that taking the employee’s temperature falls outside the scope of the GDPR, if the information is not stored by the employer or semi-automatically processed. The Data Protection Authority also referred to the competence of the occupational physician in this respect. However, the Institute of Labour Law of KU Leuven isthat this act could fall under the prevention competences of the employer without a real involvement of the occupational physician. The discussion mostly comes down to the question of whether the taking of temperature is a medical act, which can only be executed by medical doctors (or sometimes nurses). Although some labour law experts consider that this is not the situation, Belgian medical law defines medical acts extremely broadly and includes any actions taken to determine if someone is ill. Therefore, the involvement of the occupational physician is recommended.

2.5 CAN THE EMPLOYER FORCE THE EMPLOYEE TO SEE A MEDICAL DOCTOR?

The employer can invite an employee to go and see their general practitioner or the occupational physician, but you cannot force them to do so.

However, see the next question in case the employee refuses.

2.6 CAN THE EMPLOYER FORCE EMPLOYEES TO GO HOME?

The FPS Employment does not allow employers to force employees to go home as a general prevention measure (unless e.g. if the rules of social distancing cannot be respected). However, on a case by case basis, if the situation demands it, the employer can send his employees home if they clearly form a risk of contamination or if they show clear signs of illness (e.g. fever). This measure can be based on Article 20,2° of the Employment Agreements Act. It is highly recommended to involve the occupational physician in this decision.

2.7 DOES THE EMPLOYEE ALSO HAVE AN OBLIGATION WITH REGARDS TO THE HEALTH AT WORK?

Article 17, 4° of the Employment Agreements Act obliges the employee “to refrain from doing anything that may harm either his own safety or that of his fellow workers, his employer or third parties”. Although Article 17, 4° refers to safety and not to health (other than Article 20, 2°), it can be assumed that hazards to one’s health are also part of a safety problem.

2.8 CAN THE EMPLOYER QUARANTINE CERTAIN STAFF TO CERTAIN PARTS OF AN OFFICE OR SEND THEM TO A DIFFERENT OFFICE?

The employer has the right, within certain limits, to unilaterally modify the working conditions of employees, such as their workplace.

Therefore, it is possible for an employer to move certain employees to other areas as long as this move remains reasonable. However, if the “relocation” is seen as a unilateral modification of the employment contract, the employment contract will be terminated on behalf of the employer (constructive dismissal).

For example, moving certain staff to another part of the building or in another building on the same working site is reasonable, whereas moving employees to another site in another city could be considered as a unilateral modification of the employment contract. However, due to the actual circumstances, these changes could be considered as necessary sanitary measures and accepted more easily. In order to cope with this potential risk, it is recommended that the employer reaches a mutual written agreement with the employee in that regard.

2.9 CAN THE EMPLOYER ASK AN EMPLOYEE TO SELF-ISOLATE WHEN THEIR FAMILY MEMBERS OR HOUSEMATES ARE INFECTED?

According to the current sanitary recommendations, housemates/family members should not go into isolation or quarantine themselves as long as they do not have any health problems (one should isolate the sick housemate as much as possible). This means that, in principle, the family members of an infected person may go to work.

However, it is possible that the general practitioner of the ill person tells his/her family or the housemates to quarantine themselves. In this case it the employer could place those employees on temporary unemployment due to force majeure.

2.10 WHAT IF THE EMPLOYER DOES NOT TAKE PREVENTION MEASURES?

The PFS Employment has indicated that the Social Inspection will inspect the companies, especially on the application of social distancing measures for companies in non-essential activities. They also ask employees to file a complaint if they think that the employer is not taking the necessary measures. The Social Inspection has already fined several companies and some were even forced to close. The Social Inspection can make use of the checklist mentioned in 2.1.

An employer who does not comply with the provisions of the Act on the wellbeing at work may be prosecuted on the basis of Articles 127 to 132 of the Social Penal Code. The penalties are: a criminal fine of EUR 800 to EUR 8,000, or an administrative fine of EUR 400 to EUR 4,000. These amounts can be multiplied by the number of involved employees, limited to maximum 100.

When an employee has suffered health damage, the penalties are increased to a prison sentence of six months to three years and a criminal fine of EUR 4,800 to 48,000 or one of those penalties alone, or an administrative fine of EUR 2,400 to 24,000. These more severe sanctions also apply if an employer fails to comply with a coercive measure imposed by the inspection.

The Social Inspection may, in the event of a threat to the health or safety of employees, inter alia, forbid them access to the workplace, impose the cessation of an activity or seal a workplace.

Next to the Social Inspection and the Labour Prosecutor, also the police and the general Public Prosecutor can take measures against companies who do not respect the social distancing rules. In case of repetition, the police can also close a company (the Public Prosecutor has this authority even without repetition). In case of an initial infringement, an out-of-court settlement of EUR 1,500 will be proposed to the offender. In the event of repetition, the case will be subpoenaed to the correctional court as a matter of priority.

3 TREATMENT OF ILL EMPLOYEES

3.1 HOW SHOULD AN ILL EMPLOYEE LEAVE THE WORKPLACE?

As stated above (see 2.6), the employer can, preferably on the recommendation of the occupational physician, send the employee home when he is ill. If the employee cannot go home on his own because of his medical situation, the FPS Employment recommends calling upon the emergency medical assistance services. If necessary, they can take the sick employee to a hospital. For a less seriously ill employee who does not want to leave the workplace on his/her own, it is best to look for a solution in consultation with the family and/or, if necessary, with the general practitioner of the employee. Employers can, in consultation with their internal prevention advisor or with the external service for prevention and protection at work, draw up a procedure to organise transportation home for employees who become ill at work.

If the employee cannot leave the workplace immediately, it is best to isolate him/her while awaiting the transportation.

3.2 ARE THERE SPECIAL RULES TO BE FOLLOWED WITH REGARDS TO THE INCAPACITY AT WORK DUE TO CORONAVIRUS?

In principle, the normal rules apply. The employee who claims to be sick needs to prove this with a medical certificate from his/her general practitioner. In principle, the employer can send a control doctor to verify his/her situation. However the specific circumstances might make it difficult for control doctors to visit possibly infected persons. The guaranteed wage will have to be paid by the employer, unless the employees of the company are put on temporary unemployment (see 7.15). In this case, the ill employee will receive a sickness allowance of the Health Insurance Fund.

4 PRIVACY ISSUES

4.1 CAN EMPLOYERS PROCESS DATA ON THE HEALTH STATUS OF THEIR EMPLOYEES (E.G. BY LETTING THEM FILL OUT QUESTIONAIRIES)?

The employer will, in principle, need to receive the (explicit) consent of the employee to process this data. Furthermore, the processing will have to respect the other GDPR-rules with regards to minimalisation (proportionality) and transparency (who will have access to the data, for which purpose, for how long, where will the data be stored, possibility to correct the data or to retract the given consent, etc.). The Belgian Act of 30 July 2018 has laid down some additional conditions for the processing of sensitive data (including ‘health status’), like the provision of a list of persons who have access to the information and the requirement that these persons are bound by an obligation of confidentiality.

If the abovementioned conditions are met, it could be possible to process the data on the health status of the employees.

According to the Belgian Data Protection Authority, there is no reason for a broader or systematic application of the ground for lawfulness of the protection contained in Article 6.1(d) of the GDPR (“need for processing in order to protect the vital interests of the data subject or other natural persons”) in the context of preventive measures taken by companies and employers.

This applies all the more to the processing of health data, for which Article 9 of the GDPR in principle prescribes a prohibition on processing. It should be noted that companies and employers can only invoke Article 9.2(i) GDPR (“processing is necessary for reasons of public interest in the area of public health”) for the processing of this category of personal data if they are acting in implementation of explicit guidelines imposed by the competent authorities.

Finally, the GDPR provides an exception for the information of the occupational physician, who is responsible for detecting infections and informing the employer and the persons who came into contact with the infected person. This information is provided by the occupational physician

on the basis of Articles 6.1, c) and 9.2, b) GDPR (processing in execution of an obligation under employment law).

4.2 CAN THE EMPLOYER ASK THE EMPLOYEES TO NOTIFY WHEN THEY FEEL ILL OR WHEN THEY ARE INFECTED?

In principle, the employees do not have to communicate this, as it falls under their right to privacy. However, this principle can be nuanced based on Article 17,4° of the Employment Agreements Act (obligation to refrain from harming the safety of the workplace) in these specific circumstances. Furthermore, the employee should follow the government recommendations in order to prevent the further spread of the virus. Infected persons should in principle self-isolate at home.

4.3 CAN EMPLOYERS COMMUNICATE THE NAMES OF INFECTED EMPLOYEES?

By virtue of the principle of confidentiality (Article 5.1, f) GDPR) and the principle of minimum data processing (Article 5.1, c) GDPR), an employer may not simply disclose the names of the persons involved within the company. Proportionality is also an important principle to be observed when processing personal data (medical or otherwise). With a view to, for example, preventing further dissemination, the employer may of course, inform other employees of an infection, without mentioning the identity of the person(s) involved.

The name of the infected person may, however, be communicated to the occupational physician or the competent government services.

5 MANDATORY CLOSURE

5.1 WHICH COMPANIES MUST CLOSE IN ANY CASE?

The Ministerial Decree of 23 March 2020 (NL / FR) states that commercial stores and shops must close, with the exception of:

• food stores, including night shops;
• pet food stores;
• pharmacies;
• newsagents;
• petrol stations and fuel suppliers;
• telecom stores, unless they only sell accessories;
• medical supply stores, but only for

Food stores can remain open during their normal opening hours and night shops may remain open from normal opening hours until 10 p.m.

Telecom stores and medical supply stores can only receive one customer at the time and on appointment only. In supermarkets, there can be only 1 customers present per 10 m² at the same time.

Markets are prohibited, except for food stalls that are indispensable for the supply of food in areas that do not have commercial food infrastructures.

Establishments belonging to the cultural, festive, recreational, sporting and catering (restaurants and bars) sectors shall be closed. The terrace furniture of the catering sector shall be brought inside.

Hotels may remain open, with the exception of their restaurant, if any. Delivery of meals and meals to take away are permitted.

5.2 WHICH COMPANIES MUST CLOSE UNDER CERTAIN CONDITIONS?

For all other companies engaged in non-essential activities, the Ministerial Decree of 23 March 2020 makes the organisation of telework mandatory for every function for which this is possible (see 6.1). If telework is not possible for the function of the employee, the employer can continue to employ him/her at the workplace if the social distancing rule of 1,5 meters between each person can be respected. If it is not possible to respect this distance, the company must close. As stated above (see 2.10), the social inspection and police can also close companies who do not respect the social distancing measures.

This rule does not apply to companies who are active in essential activities and sectors (see 5.3).

For certain sectors, the government has clarified some specific guidelines in their own FAQ. E.g. for the construction sector “Building activities may take place outdoors, subject to social distancing measures. This also applies to indoor activities in non-residential buildings and dwellings. For repairs indoors, urgency in the context of safety, welfare and hygiene is a strict requirement (plumber, repairs).”

5.3 WHICH ACTIVITIES OR SECTORS ARE ESSENTIAL?

As stated above, the mandatory telework and social distancing rules are not mandatory for companies engaged in essential activies and sectors. However, these rules have to be applied as much as possible.

The Ministerial Decree of 23 March 2020 enlists the essential sectors and activities in its annex (NL / FR). For the private sector, this list is translated into the corresponding sectoral joint committees. In case it is unclear whether a company is part of an essential sector or delivers an essential service, it could be useful to consult the NACE-BEL 2008 (NL / FR), which lists all commercial activities in Belgium.

5.4 CAN A COMPANY BE FORCED TO STAY OPEN?

If public order or the general interest so requires, the mayor may order the necessary police measures, including the mandatory opening of businesses and shops.

6 TELEWORK

6.1 WHEN IS TELEWORK MANDATORY?

The Ministerial Decree of 23 March 2020 obligates employers to organise telework for every function for which this is possible. Teleworking is mandatory for all companies and non-essential services, regardless of their size and for all employees for whom it is possible, without exception.

In case the employer refuses to organise telework for employees for whom it is possible, this can be seen as a breach of his prevention obligation, which is criminally sanctioned by the Social Penal Code (see 2.10). Nevertheless, it is in principle up to the employer to see whether telework is possible, but this analysis should be based on objective facts and the situation can be verified by the social inspection or the police.

Although the Ministerial Decree of 23 March 2020 does not go into specific details, an employer could take inspiration from the obligation to foresee reasonable accommodations for employees with a disability. The employer thus has a duty to take the certain measures to organise telework, but these measures have to be feasible for the employer and should not require an excessive economic investment. It will usually not be possible to turn manual labour into telework and some companies will require certain employees to be permanently present e.g. for security or reception reasons.

For companies who deliver essential services / in an essential sector, there is only a recommendation to apply telework as much as possible.

6.2 IS TELEWORK DUE TO COVID-19 OCCASIONAL TELEWORK OR STRUCTURAL TELEWORK?

There is a discussion whether the telework due to coronavirus is occasional telework (framework in the Act of 5 March 2017 on feasible and flexible work), structural telework (framework in CBA no. 85) or an ad hoc version of telework. The Institute for Labour Law of KU Leuven seems to prefer the qualification of occasional telework, as it is the consequence of force majeure. This is despite the condition that, in the case of occasional telework, the work is carried out occasionally and not on a regular basis outside that company location, while structural telework is carried out on a regular basis and not incidentally. Although the regulatory framework for occasional telework is unmistakably intended to accommodate short periods, there is nothing explicitly provided in the law to prevent telework from being considered initially irregular and incidental under the current circumstances. Even if the coronavirus is a recurring phenomenon, the measures imposed by the government are incidental and not regular in nature. The basis for the telework may remain occasional, so that the telework itself is incidental, notwithstanding the more or less long-term nature of the telework.

Of course, in this case, the employee must not request the telework in advance, and the employer cannot refuse the telework (if it is possible for the function of the employee), in contrast with the systems of structural and occasional telework. Therefore, the situation could also be considered as a specific ad hoc form of telework. This last view finds support in the opinion of the National Office of Social Security, which states that it is not a true situation of

telework. In this case, the existing rules for occasional telework work could be applied by analogy, in so far those rules are not in contrast with the obligation to organise telework in the Ministerial Decree of 23 March 2020. The FPS Employment has confirmed that the same conditions as for occasional telework can be applied, without confiriming that the “corona- telework” constitutes occasional telework.

6.3 CAN OCCASIONAL TELEWORK TURN INTO STRUCTURAL TELEWORK?

According to the Institute for Labour Law of the KU Leuven it could be possible to turn the situation of occasional or ad hoc telework into a structural one. In this case, the annex to the employment agreement on structural telework can contain a clause which states that the structural telework will take effect and end when the government measures relating to corona cease to exist.

In this case, the principle of the voluntary nature of structural telework will not be respected. However, in the past, certain labour courts have also claimed that employers should have organised structural telework as a measure of reintegration for an employee who is recovering from an incapacity to work.

It could be preferable for all parties to organise this situation of telework as if it would be structural telework, because this situation is more extensively regulated and therefore gives more legal certainty. Furthermore, for structural telework, it is mandatory to conclude an agreement (annex to the employment agreement) on the conditions (for occasional telework there can be a framework agreement, but this is not an obligation). However, take note that, with structural telework, certain costs for telework have to be compensated by the employer, while this is only a mere possibility in case of occasional telework.

Finally, it could be a good idea to provide a telework policy (even if it is a short one) to lay down the basic rules for telework during the period of confinement.

6.4 CAN THE EMPLOYER COMPENSATE THE TELEWORK COSTS TO THE EMPLOYEE?

The National Office of Social Security has declared that the so-called “home-office allowance” of € 126,94 per month to cover the costs of heating, electricity, small office equipment, etc., can be granted free of social security contributions to all employees who work from home, including those who did not work from home before the COVID-19 measures, and therefore without the employer and employee having concluded a formal telework agreement.

In addition to this reimbursement, the employer may reimburse the following costs:

• use of employee’s own PC/laptop – a fixed amount of up to € 20 per month is acceptable;
• use of employee’s own internet connection – a flat rate of up to € 20 per month is acceptable.

If the employee has to incur other costs (use of his own telephone, purchase of a screen or a scanner, …) the employer may also reimburse those costs. There is no general lump sum for this; the reimbursement must be based on the actual costs.

Employers who, prior to the COVID-19 measures, reimbursed the costs of their teleworkers on the basis of the 10 % of the gross salary relating to the home services provided for in the telework contract, can continue to pay this reimbursement according to the same principle for the pro rata provided for in the telework agreement (e.g. 10 % on 2/5ths of the monthly salary if the contract provided for 2 days of telework).

Therefore, an allowance of 10 % of the full gross salary is unacceptable. Indeed, the employees who temporarily work entirely from home under the COVID-19 measures are not in a situation of home working as provided for in Title VI of Employment Agreements Act, nor in a situation of teleworking in the true sense of the word.

In any event, an allowance of € 126,94 may be paid instead of the 10 % of the pro rata monthly salary, should the latter be less.

7 TEMPORARY UNEMPLOYMENT

7.1 WHAT KIND OF TEMPORARY UNEMPLOYMENT CAN BE INVOKED DUE TO CORONA?

As of 13 March 2020, all temporary unemployment resulting from the coronavirus can be considered as temporary unemployment due to force majeure.

If the temporary unemployment is not due to the coronavirus, the employer can still invoke the system of temporary unemployment due to economic reasons.

In most cases, it is preferable to use the system of temporary unemployment for force majeure as this procedure is (temporarily) extensively simplified and has a larger scope of application than temporary unemployment due to economic reasons.

7.2 IN WHICH SITUATION CAN TEMPORARY UNEMPLOYMENT BE INVOKED?

The procedure for force majeure is open for:

• blue-collar and white-collar employees (from the private sector, the public sector and the non-profit sector);
• temporary agency workers during the duration of their temporary contract (renewable if necessary);
• staff working in educational establishments;
• apprentices on occupational training (mainly apprentices on professional training contracts in the French Community and on professional training contracts in the Flemish Community).

However, civil servants and students do not fall under its scope.

The National Employment Office (RVA/ONEM) lists the following examples of situations for which the employer can invoke temporary unemployment due to the coronavirus:

• An employee who, for personal reasons (e.g. holidays) or for professional reasons (e.g. a business trip) stays in a country affected by the coronavirus and who, at the end of his/her stay, is not allowed to return to Belgium (e.g. due to a flight ban or quarantine) and therefore cannot resume work with his employer on the agreed
• An employee who has visited a country affected by the coronavirus and who has returned to Belgium but who, on arrival in Belgium, has been placed in quarantine by

a competent authority and cannot therefore resume work with his employer on the agreed date.

• Belgian companies affected by the consequences of the coronavirus, for example because they are dependent on suppliers or are unable to employ their staff because production is at a
• Personnel from the catering sector (cafés, restaurants), cinemas, theatres, shops and non-essential commercial establishments which have closed down or have temporarily reduced their activities due to government measures to prevent the spread of the coronavirus (lockdown).
• Companies that (partially) close because they do not have telework tasks available to (all) their employees and cannot respect the social distancing measures for the exercise of their work and organised transport (e.g. in the construction sector).
• Employers who have already applied for temporary unemployment for economic reasons due to the coronavirus and who are now affected by government measures, can also apply for temporary unemployment for force
• Employees employed in the context of recreational, cultural or sporting activities that have been cancelled by the government or postponed by the
• Schools which are no longer able to employ all or part of their contractual staff (administrative staff, etc.) due to the suspension of classes or the low level of attendance at reception (due to strict sanitary measures).

7.3 DOES THE COMPANY NEED TO COMPLETELY CLOSE DOWN?

In case of force majeure, a company does not have to be completely closed down. In practice, this means that some employees may be placed on temporary unemployment and others may not. Employers should take care not to use discriminatory criteria to decide which employees they will put on temporary unemployment.

7.4 CAN TEMPORARY UNEMPLOYMENT BE INVOKED ON A PARTIAL BASIS (ONLY FOR CERTAIN DAYS OF THE WEEK)?

Employees can indeed alternate days of unemployment and working days, but this only refers to full working days. It is not possible to alternate between a half day at work and a half day on temporary unemployment.

7.5 WHICH PROCEDURE DOES THE EMPLOYER NEED TO FOLLOW?

The employer no longer needs to apply for the system of temporary unemployment (previously an application was necessary through the digital social security portal).

However, the employer should still submit, as soon as possible, an electronic declaration ASR/DSR scenario 5 (NL / FR) for the temporarily unemployed employees on the social security portal. In this electronic declaration, the employer has to mention force majeure and coronavirus as the reason for the temporary unemployment.

On the basis of this ASR/DSR scenario 5 declaration, the payment institutions (trade unions) and the National Employment Office will be able to determine the amount of the benefits for the temporarily unemployed. The employer does not have to wait until the end of the month

(which used to be the case), but has to do this as soon as all the details are known until the end of the month. The sooner this declaration is submitted, the sooner the employees will receive their benefits.

Exceptionally, the employer does not have to provide a monthly control form C3.2A to every temporarily unemployed employee for the months March, April, May and June 2020. During these 4 months, the temporarily unemployed employees will be exempted from the obligation to be in possession of a C3.2A card. This also applies to employees employed in the construction sector.

7.6 UNTIL WHEN IS THE TEMPORARY UNEMPLOYMENT DUE TO CORONA VALID?

The special corona procedure for temporary unemployment due to force majeure is valid for as long as the corona measures of the government are maintained (a date which is subject to possible extensions). It is best to consult the website of the National Employment Office (NL / FR). However, the last possible date is 30 June 2020.

7.7 HOW MUCH IS THE TEMPORARY UNEMPLOYMENT ALLOWANCE?

In case of temporary unemployment due to force majeure, the employee is exempted from any waiting period. Therefore, he does not have to prove a number of working days before he is entitled to benefits. The employee receives 65% of his average capped salary (capped at € 2,754.76 per month). Until 30 June 2020, the amount of the benefit is temporarily increased to 70% of the average capped salary. On top of this, the government will add a supplement of €

5.63 per day on top of the unemployment benefit, at the expense of the National Employment Office. A withholding tax on professional income of 26.75% will be deducted from the benefit.

The temporarily unemployed employees who live in Flanders will also receive a compensation premium to pay for the water and energy bills of one month, worth € 202.68 euros. The Brussels Capital Region and the Walloon Region do not offer a similar premium.

7.8 DOES THE EMPLOYER NEED TO PAY A SUPPLEMENT ON THE ALLOWANCE?

In principle, there no such obligation for the employer. However, certain sectors have provided for a mandatory supplement to be borne by the employer or by the social fund of the sector, which is the case in the following sectors:

• Supplement paid by employer:
  • Quarries (102.01; 102.03; 102.05; 102.06; 102.07; 102.09)
  • Non-Ferrous Metals (105)
  • Cement/concrete (106.02; 106.03)
  • Garment making companies (109)
  • Ceramics (113; 4)
  • Chemical industry (116)
  • Food industry (118; all sub joint committees except 03)
  • Jute bags (120.3)
  • Cleaning (121)
  • Agriculture (144)

• Horticulture (145)
• Large retail stores (311)
• Sheltered workplaces (327.01;327.03)
• Public lotteries (334)

• Supplement paid by social fund:
  • Metal industry (111; 111.01; 03)
  • Garage company (112)
  • Upholstery / Woodworking (126)
  • Technical agriculture and horticulture (132)
  • Electricians, bodywork, precious metals (149.01; 149.02; 149.03; 04)
  • Hairdressers/Cleaning (314)
  • Diamond industry and trade (324)

• Supplement paid by employers and by social fund:
  • Textile industry in Verviers (120.1)
  • Tobacco (cigarettes/cigars) (133; 133.02; 133.03)

7.9 CAN THE EMPLOYER PAY A VOLUNTARY SUPPLEMENT?

Yes, it is possible to grant a supplement without having to pay social security contributions. The NSSO (National Social Security Office) stipulates, as the only condition regarding the amount of the supplement, that the sum of the temporary unemployment allowance, which the employee will receive, and the supplement, may not result in the employee receiving a net income higher than that which he would have received if he had worked.

The NSSO has specified the following:

• In addition to the payment of the allowance of the National Employment Office and any supplements such as the EUR 5.63 per day in the case of ‘temporary unemployment due to force majeure’, supplements that will be granted by a (sectoral) Social Fund must also be taken into
• The employer must treat all employees of the same category equally; this may be done by, or to compensate up to, a certain percentage of the net wage or by paying a lump sum to everyone, bearing in mind that even employees with the lowest salaries may not receive more than they would have received if they had
• The average wage of the previous months can be taken into account in the case of employees with variable
• Only wages on which social security contributions are due may be taken into account; supplements may therefore not take into account benefits such as meal vouchers,
• “Net” does not mean that one should base one’s salary on the net monthly salary and the net amount of the supplements and the allowance, but that one should take into account that other withholding taxes apply to the salary, the allowance and supplements; it is therefore best to use the respective gross taxable amounts as a starting
• The NSSO understands that decisions have to be taken quickly and therefore allows that if it appears that the supplements granted for the month of March are too high, the employer

may compensate this by reducing the supplements for the following months, also because the final amounts of the unemployment benefit will not be known immediately.

7.10 WHAT DOES THE EMPLOYEE HAVE TO DO TO RECEIVE THE ALLOWANCE?

The employee needs to submit the C3.2 form for employees to a payout institution (his/her trade union or the Subsidiary Payout Institution (HVW/Capac) for employees who are did not join a trade union and who do not want to). This form is available on the websites of the payout institutions.

The payment of the allowance can only take place after the payout institution has received an electronic ASR/DSR scenario 5 declaration from the employer, the monthly declaration of the hours of temporary unemployment or hours of suspension of employees (see 7.5).

An employee who is temporarily unemployed due to force majeure is granted the right to unemployment benefits without conditions of eligibility. This also applies, for the period from 1 February 2020 up to and including 30 June 2020, to an employee who is temporarily unemployed for economic reasons.

7.11 CAN TEMPORARY UNEMPLOYMENT DUE TO ECONOMIC REASONS BE CHANGED INTO TEMPORARY UNEMPLOYMENT DUE TO FORCE MAJEURE?

If the temporary unemployment is related to the coronavirus and the employer already sent a notice of temporary unemployment for economic reasons for the employees, the employer can, if he wishes, switch to the scheme of temporary unemployment for force majeure (motive: coronavirus). For this purpose, the employer indicates ‘force majeure’ as the reason for the temporary unemployment in the ASR/DSR scenario 5 declaration.

If the employer states ‘economic reasons’ as a reason for the temporary unemployment in the ASR scenario 5 declaration, the employee will remain in the system of temporary unemployment for economic reasons.

7.12 IS TEMPORARY UNEMPLOYMENT POSSIBLE IN THE PUBLIC SECTOR?

The temporary unemployment procedure for force majeure is now temporarily applicable for all situations relating to the coronavirus. The public sector employer can make use of this system for all their contractual workers (white collar / blue collar). This solves the problem that temporary unemployment due to economic reasons cannot be requested for white collar workers in the public sector.

However, the temporary unemployment system is not open to civil servants.

7.13 IS TEMPORARY UNEMPLOYMENT POSSIBLE FOR EMPLOYMENT AGREEMENTS WHICH ARE SIGNED BUT DID NOT START YET?

According to the National Employment Office, this depends on the date of the signing of the employment agreement. In case the employment agreement was signed before the start of the corona-crisis (i.e. before 13 March 2020), it is possible to place the employee on temporary unemployment at the start of the employment agreement. However, if the employment agreement was signed at or after the start of the corona-crisis (as of 13 March 2020), the

National Employment Office will not accept temporary unemployment, unless the following conditions are met cumulatively:

• the entry into service is necessary for the organization of the company. For example, to replace an employee who is an indispensable link in ensuring the operation of the company;
• there is still partial employment in the company on a regular basis. For example, work is still carried out systematically on two days a

7.14 WHEN CAN THE EMPLOYER RECALL THE TEMPORARY UNEMPLOYED EMPLOYEES?

The employer can halt the temporary unemployment and recall the employees to work as soon as he thinks that there is enough work, or as soon as the company is allowed to open (in light of the closure measures) and telework or social distancing can be effectively organised. Temporarily unemployed employees will have to keep themselves available to return to work. In practice, this does not mean that the employer can always recall its temporarily unemployed employees immediately at every hour of the day, it is recommended to give reasonable notice in advance.

It is not necessary to recall all the employees at once. It could be the case that the social distancing measures only allow for a portion of the employees to return to the workplace. When recalling the employees, the employer should take care not to use any discriminatory criteria to select the employees. If the functions of the employees allow it (if they are similar enough), it could be preferable to allow all the employees to only partially return. In this way, the employer will avoid a difficult choice between his employees.

7.15 WHAT IF THE TEMPORARILY UNEMPLOYED EMPLOYEE IS ILL ?

With regard to the concurrence of different suspensions (for incapacity to work and for temporary unemployment), the starting point is that the performance of the employment agreement cannot be suspended at the same time for two different reasons. Which of the two causes in such a case leads to the suspension of the employment contract, is not regulated by the Employment Agreements Act. In practice, the so-called chronological criterion is often used, whereby the first cause of suspension neutralises any other events.

Therefore, if the incapacity for work due to illness starts before the start of the suspension due to the temporary unemployment, the suspension due to incapacity for work takes precedence. In that case, the employee is, in principle, entitled to guaranteed pay in accordance with the provisions of Article 52 et seq. of the Employment Agreements Act.

However, Article 56(1) of the Employment Agreements Act provides that during a period of suspension of the performance of the employment contract due to illness or accident, the blue- collar employee is only entitled to normal pay for the days of normal activity for which he would have been entitled to remuneration if he had been able to work.

In other words, there is only a right to guaranteed salary if the incapacity for work would have resulted in a loss of salary. If, without incapacity for work, there would not have been a right to salary, then there is no right to the guaranteed salary even with incapacity for work.

As a result of the aforementioned legal provision, no guaranteed salary will be due for the days of incapacity to work that coincide with a period in which the execution of the blue-collar worker’s employment contract is suspended, due to temporary unemployment. The blue-collar worker will receive a benefit from the Health Insurance Fund for this coinciding period.

However, there is no statutory provision for white-collar workers within the meaning of Article 56 of the Employment Agreements Act. With regard to the question of whether the rule of Article 56 can be applied by analogy to the white-collar workers, there are opposing views between the case law and legal doctrine. The FPS Employment is of the opinion in this respect, that it is fair and in accordance with the spirit of the Employment Agreements Act, to regard the provision of Article 56 as a general rule and to apply it by analogy to the white-collar employees.

In conclusion, it will not be necessary to pay the guaranteed salary if the employee is placed on temporary unemployment. However, for white-collar employees there is a minority opinion which contradicts this.

7.16 CAN THE EMPLOYER FORCE THE EMPLOYEES TO TAKE UP THEIR LEAVE, E.G. BEFORE THEY ARE PUT ON TEMPORARY UNEMPLOYMENT?

The employer and employee will have to agree on the days on which the employees take their leave. It is not possible for the employer (nor for the employee) to unilaterally decide when the vacation should be taken.

The employer can ask that his employees voluntarily take up their additional days which they received, because they work in a 40 hours/week system instead of a system of 38 hours/week, or their recuperation days. But this is not an obligation for the employees (it only is for temporary unemployment due to economic reasons).

7.17 CAN AN EMPLOYEE STILL REQUEST TO TAKE VACATION DAYS DURING THE TEMPORARY UNEMPLOYMENT?

It is still possible to take vacation days during the temporary unemployment. In this case, the employee will not receive the unemployment allowance, but he/she will still receive the wage/holiday pay. The advantage is that the holiday pay is higher (so this could be an interesting option for employees with heavy financial obligations, like a mortgage).

7.18 CAN AN EMPLOYEE WHO HAD ALREADY PLANNED TO TAKE UP VACATION DAYS CANCEL THEM BECAUSE OF THE TEMPORARY UNEMPLOYMENT?

No, the cancellation of vacation days cannot be decided unilaterally by an employer or an employee. The employee will need the consent of the employer.

7.19 CAN THE EMPLOYER DISMISS A TEMPORARILY UNEMPLOYED EMPLOYEE?

It is still possible to unilaterally terminate the employment contract during the period of temporary unemployment. The employer will still have to give notice period or pay an indemnity in lieu of notice to the employee (unless in case of dismissal because of serious cause). The suspension of the employment agreement, because of temporary unemployment due to force

majeure does not suspend the notice period. Beware that this is not the case in the instance of temporary unemployment due to economic reasons: under this system the period of notice shall be suspended – and thus extended – during the period in which performance of the employment contract is suspended.

7.20 CAN THE EMPLOYMENT CONTRACT BE TERMINATED BECAUSE OF FORCE MAJEURE?

Article 26 of the Employment Agreements Act provides that events of force majeure do not lead to the termination of the employment contract, if they only suspend performance of the contract temporarily.

In order to constitute a case of force majeure causing the termination of the employment contract in the sense of Article 32, 5° of Employment Agreements Act, it is not sufficient that the performance of the contract becomes more difficult or more expensive. Rather, the requirement is that it becomes definitively impossible for a reason independent of the will of the parties.

Given that the consequences of the COVID-19 pandemic and the measures taken to combat the spread of the virus are only temporary in nature, an employer cannot rely on the corona- measures to determine the end of the employment contract on grounds of force majeure. However, it remains possible to terminate the employment contract by giving a notice period or by paying a dismissal compensation (see 7.19).

8 CONTINUATION OF SOCIAL DIALOGUE

8.1 DO THE WORKS COUNCIL AND HEALTH & SAFETY COMMITTEE STILL NEED TO CONVENE?

The national social partners and the FPS Employment have asked the companies to continue the social dialogue in their companies.

The FPS Employment states that the employer should ensure that he continues to involve the consultative bodies within the company, such as the Works Council and the Health & Safety Committee, during this pandemic for those matters for which they are competent.

As long as no new consultative bodies have been set up, the current ones will continue to operate.

With regard to the annual economic and financial meeting of companies, the Royal Decree of 27 November 1973 on the economic and financial information to be provided to works councils, stipulates that it must take place before the General Meeting of Shareholders. This means that, with regard to works council legislation, the annual meeting can be postponed if the General Meeting is also postponed.

The employer should inform the Works Council when events occur or decisions are taken that may have a significant impact on the company. The impact of the coronavirus on the company and the measures taken to redress the effects of the corona-crisis can fall under this description. This so-called “occasional information” is provided to the Works Council, without waiting for the

moment of a meeting devoted to the periodic information. This information must be provided as soon as possible. If it concerns a decision of the head of the company, the works council will, in principle, be informed before the execution of the decision.

8.2 IS IT PERMISSIBLE FOR SOCIAL DIALOGUE BODIES TO CONVENE DIGITALLY?

The FPS Employment recommends that, in view of the importance of good social consultation and communication with personnel, meetings can be held, taking into account the rules of “social distancing” or by using skype, videoconferencing, … or any other solution approved by both parties of the Works Council or the Health & Safety Committee, in accordance with the modalities provided for in the internal regulations.

The Act of 20 September 1948 on the organisation of economic life, stipulates that the meeting of the Works Council has to take place at the seat of the undertaking. However, considering just how old this act is, as well as the recommendation of the Federal Government Service, and the special circumstances, a broad interpretation of the “seat” of the undertaking can be adopted, as in encompassing the “virtual seat” of the undertaking. Therefore, it is possible to convene digitally.

8.3 WHAT ABOUT SOCIAL DIALOGUE ON SECTOR AND NATIONAL LEVEL?

The National Labour Council continues to meet through digital means. Also at sectoral level it is possible for Joint Committees to convene virtually (this will depend from sector to sector).

9 POSTPONEMENT OF THE SOCIAL ELECTIONS

! Be aware that the information below is based on the advice of the social partners and that the suspension still has to be implemented by the government.

9.1 HOW IS THE CURRENT PROCEDURE FOR THE SOCIAL ELECTIONS SUSPENDED?

The National Labour Council has issued advice nr. 2160 (NL / FR), in which the social partners propose to suspend the current procedure of the social elections, which were scheduled to take place from 11 to 24 May 2020.

The last step of the current procedure that still needed to be fulfilled, is the day X+35; on this day the list of candidates should be submitted to the employer. Day X+35 could fall from 17 to 30 March 2020. On this day, the employer has the necessary information regarding which of his employees are candidates for the social elections. Therefore, the employer can identify the employees who are covered by the specific dismissal protection for candidates. Suspending the procedure after this day heightens the legal certainty. The social partners propose to suspend the procedure as of day X+36.

The social partners propose to hold the social election later this year, from 16 to 29 November 2020. The election day, called day “Y”, should not be chosen anew by the employer, but would logically correspond to the chosen day Y in the initial procedure (between 11 – 24 May 2020).

The social partners have asked the government to amend the Act of 4 December 2007 on the Social Elections as soon as possible, in order to give the suspension full legal effect. The adaptation of the act will likely have a retroactive effect.

9.2 WHEN WILL THE PROCEDURE START AGAIN?

The social partners propose to suspend the procedure as of day X+36. Therefore, the procedure will continue on a new “day X+36”, which will depend on the new day Y in November.

The first important step will be day X+40, on which the employer will communicate the list of candidates to the employees and which the presidents of the polling stations will be appointed.

The new fictitious day X on which the next steps will be calculated can fall between 18 August 2020 and 31 August 2020.

The new day X+40 therefore can fall between 27 September 2020 and 10 October 2020.

9.3 WHAT IF NO CANDIDATE LIST WAS SUBMITTED ON DAY X+35?

If the list of candidates for the social elections has not been submitted on day X + 35 (which took place the latest on 30 March 2020), the employer can stop the procedure and does not need to organise social elections. The employer needs to notify this end of the procedure to the FPS Employment.

9.4 WHAT HAPPENS WITH CURRENT BODIES FOR SOCIAL DIALOGUE?

The current operating Works Council and Health and Safety Committee will continue to exist, and the elected representatives shall maintain their mandates until the new bodies are installed.

9.5 WHAT HAPPENS WITH THE DISMISSAL PROTECTION?

The employee representatives in the current Works Council and Health and Safety Committee maintain their dismissal protection until the installment of the new bodies, following the elections in November 2020. Also, the non-elected candidate-employee representatives of the social elections in 2016 maintain their dismissal protection until then (unless they were also not elected in the social elections of 2020; in this case their dismissal protection ceased to exist in 2018).

Further, the new candidate-employee representatives also have a dismissal protection. As of Day X+35, the candidate lists are submitted to the employer. Therefore, the employer knows who is protected, as the so-called “occult period” is now behind them. However, there is also a shorter occult period for employees who can replace the current candidates on the list on day X+76.

The National Labour Council proposes that from the new fictitious day X, being 36 days prior to the new day X+36, a new occult period starts until the new day X+76. A candidate who is nominated no later than the new day X+76 to replace a candidate who was nominated on day X+35, will benefit from the dismissal protection from the new day X. Therefore, these replacement-candidates will not benefit from the dismissal protection until that new fictitious day X.

9.6 WHAT ABOUT THE ELIGIBILITY CONDITIONS FOR CANDIDATES?

All candidate-eligibility conditions must be assessed on the originally scheduled day Y between 11 and 24 May 2020. This also applies to replacement candidates who are nominated on the new day X+76.

9.7 WHAT ABOUT THE SENIORITY CONDITIONS FOR TEMPORARY AGENCY WORKERS IN ORDER TO BE ABLE TO VOTE?

Temporary agency workers are entitled to vote at the user’s premises. For this, the temporary worker must meet a double seniority condition, which must be met during two reference periods:

1. from 1 August 2019 up to and including day
2. from day X up to and including day X+77.

In this second period, the temporary worker must be employed for a total of at least 26 working days. The NLC proposes to neutralise the second period of seniority during the suspension of the election procedure. This means that the second period of seniority runs from day X up to and including day X+35, and resumes from the new day X+36 up to and including the new day X+77.

10 MEASURES RELATING TO SOCIAL SECURITY CONTRIBUTIONS

10.1 CAN THE EMPLOYER ASK FOR A POSTPONEMENT OF THE PAYMENT OF SOCIAL SECURITY CONTRIBUTIONS?

The NSSO has automatically granted a postponement to 15 December 2020 for the payment of social security contributions, to employers that have been compulsorily closed down as a result of the corona measures.

These are employers in the following sectors:

• the hotel and catering industry,
• the cultural, festive, recreational and sports sector,
• all shops and retail outlets closed in accordance with the provisions of the relevant ministerial decrees, with the exception of:

• • food shops, including night shops,
  • pet food stores,
  • pharmacies,
  • newsagents, and
  • fuel stations and fuel suppliers.

If the company was not obliged to close by the Ministerial Decree of 23 March 2020, but did because it could not comply with the sanitary measures, or because of other valid reasons, such as the fact that the suppliers are closed, the employer may apply for a postponement of payment via the electronic declaration on honour, which can be found on the online social security portal.

10.2 WHICH SOCIAL SECURITY CONTRIBUTIONS ARE INCLUDED?

The postponement of payment shall cover all payments from 20 March 2020. It therefore includes:

• the changes to the contributions still to be paid;
• the monthly instalments of the current amicable repayment plans;
• the third advance for the 1st quarter (to be paid on 05/04/2020);
• the balance for the 1st quarter (payable on 30/04/2020);
• the debit annual leave message sent to employers from 01/04/2020 and payable before 30/04/2020;
• the advances for the 2nd quarter (to be paid on 05/05, 05/06 and 05/07/2020);
• the balance for the 2nd quarter (payable on 31/07/2020).

The obligation to submit the NSSO declaration within the set deadlines remains in force.

10.3 MUST THE COMPANY BE COMPLETELY CLOSED FOR THE POSTPONEMENT OF THE PAYMENT OF SOCIAL SECURITY CONTRIBUTIONS?

As regards the notion of ‘total closure’, production and sales should have ceased. This does not prevent a limited number of employees from continuing to work within the company for reasons of safety, administration, necessary maintenance and so on.

10.4 CAN THE EMPLOYER REQUEST AN AMICABLE PAYMENT PLAN FOR THE SOCIAL SECURITY CONTRIBUTIONS?

If the company is experiencing economic consequences as a result of the COVID-19 virus, and the employer has difficulties paying the social security contributions, he may apply to the NSSO for an amicable repayment plan on the basis of the COVID-19 crisis, for the first and second quarter of 2020.

The amicable repayment plan of the NSSO allows the employer to make monthly payments for a maximum of 24 months. If the employer paid all the social security contributions correctly, the NSSO may exempt the employer from contribution surcharges, lump-sum reimbursements and/or interest.

The amicable repayment plan can be requested on the online social security portal.

 

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Van Olmen & Wynant attorneys are available to assist you with these and other workplace issues. For more information, visit https://www.vow.be/.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.