Belgium: Temporary Flexibility introduced to cope with Consequences of COVID-19

The Belgian Government has approved several new socio-economic measures which give employers and employees some temporary flexibility to cope with the coronacrisis. The Royal Decree nr. 14 of 27 April 2020 lays down the measures. In principle, the measures apply from 1 April until 30 June 2020 (unless mentioned otherwise). Most of the measures only apply to critical sectors (which are the same as the essential sectors, as defined by the Ministerial Decree of 23 March 2020) or to vital sectors: agriculture (Joint Committee no. 144), horticulture (Joint Committee no. 145) and the forestry sector (Joint Committee no. 146) or by way of temporary agency work in these sectors.

1. 220 hours voluntary overtime

From 1 April until 30 June 2020, employees in the critical sectors are allowed to perform 220 voluntary overtime hours. These hours will not be subject to social security contributions or taxes. Employers will not have to pay overtime (only the normal wage), nor grant compensatory rest.

2. Hiring out of employees made (a little bit) easier

A new exception to the prohibition of hiring out of employees (also called ‘posting’ or ‘secondment’ of workers) is introduced in order to make it possible to hire out their normal employees to employers in critical sectors, This measure is applicable from 1 April until 30 June 2020.

The conditions are that

1. Only “normal” employees may be hired out. Normal employees are all employees who are connected to an ordinary employment contract. Employees with a replacement or temporary agency employment contract are not eligible;
2. The employer, the user and the employee must sign a tripartite agreement before the posting commences. This agreement must specify the conditions and duration of the period of posting;
3. The original employment contract with the employer remains in force;
4. The user will be jointly and severally liable for the payment of social security contributions, wages, allowances and benefits resulting from the posting. If, for example, the employer cannot pay the wages, the employee will be able to address the user;
5. The salary, allowances and benefits of the posted employee may not be lower than those received by employees who perform the same functions in the user’s company.
6. The seconded employee was employed by the original employer before 10 April 2020.

This allows employers (mostly in non-essential sectors) to shift their employees to where they are needed the most (in essential sectors).  However, this possibility does not derogate significantly from the normal rules of Article 31 of the Act of 24 July 1987 regarding the hiring out of workers. The only condition that has been lifted is that the prior consent of the social inspectorate is no longer required. The social inspectorate would  only grant this permission if there is an agreement between the trade union delegation at the user company and the user itself. If there is no union delegation at the user’s premises, the agreement of the workers’ delegation in the Joint Committee of the sector to which the user belongs would be required. Furthermore, the condition of prior employment (before 10 April 2020) has been added.

3. Consecutive short-term employment contracts

The Employment Contracts Act explicitly states that successive fixed-term employment contracts that succeed each other result in an employment contract of indefinite term.

In critical sectors, it is now allowed from 1 April until 30 June 2020 to employ persons with consecutive short-term contracts, without running the risk that these will be qualified as an employment contract of indefinite term. However, these contracts will have to consist minimum out of 7 days.

It is not entirely clear if this also means that the duration of these short term contracts should (not) be taken into account for the calculation of the maximum duration of temporary contracts of the same employees after 30 June 2020.

4. Students are allowed to work more

All hours performed by students in the second quarter of 2020 (1 April until 30 June 2020) will be neutral to the normal maximum of 475 hours per student per year. This means that the students will be able to work more hours under the beneficial student employment system, for which only a solidarity contribution of 8,13% (in total) is required.  This measure is applicable for all employers (not only the essential or vital sectors).

5. Time credit – Possibility to suspend the carreer interruption to work for own employer in vital sectors

The employee of an employer in a vital sector can choose to temporarily suspend his/her time credit or career break to return to the work full time in April, May (and possibly June). The time credit automatically recovers its former status at the end of temporary employment, the period of the temporary employment is not taken into account for the calculation of the period of the time credit and there is no entitlement to a benefit during the suspension of the time credit.

This measure applies from 1 April until 31 May 2020, but could be prolonged by Royal Decree until 30 June 2020.

6. Time credit – Possibility to work for another employer in a vital sector

An employee can also choose to temporarily suspend his/her time credit or career break to work for another employer in a vital sector. In this case the employee will continue to receive 75% of his time credit benefit while he also receives the wage from the other employer. This option requires a written temporary employment agreement with the employer in the vital sector, which will automatically take an end at the end of this measure.

This measure applies from 1 April until 31 May 2020, but could be prolonged by Royal Decre until 30 June 2020.

7. Unemployed persons with company allowance can work for former employer or for another employer in vital sectors

An unemployed person with company allowance (the system was previously called ‘bridge pension’), who temporarily resumes work during the period April and May in a vital sector can keep 75% of his unemployment benefits during this period of resumption of work. If he resumes work with another employer in a vital sector, he also retains his company allowance. The specific conditions are provided in another Royal Decree of 23 April 2020.

This measure applies from 1 April until 31 May 2020, but could be prolonged by Royal Decree until 30 June 2020.

8. Freeze of the gradual decrease of unemployment benefits

This measure is mentioned in Royal Decree no. 14, but the rules are laid down by a specific Decree of 23 April 2020.

There is a freeze of the ‘degressivity’ (gradual decrease) of unemployment benefits for 3 months. Normally, the longer a person is unemployed, the lower his unemployment benefit will be in order to encourage them to find work. However, as it is very difficult to find a new job during the lockdown, a period of 3 months will not be taken into account, which will give unemployed person the right to enjoy the higher unemployment benefits for a longer period of time.

Specifically, the phase or part-phase of the reimbursement period in which the person concerned finds himself on 1 April 2020 is extended by three months. This also applies to those who apply for unemployment benefits in the period April to June 2020. The phase in which the unemployed person starts is extended by the period of that phase in the period April to June 2020. Only full months in that period will extend the reimbursement phase.

9. Activation of Asylum seekers

All employers (not only in critical or vital sectors) will be able to employ Asylum seeks who have submitted a request for international protection at the Office of the Commissioner General for Refugees and Stateless Persons before 18 March 2020. The employer has to provide accommodation for the asylum seekers.

In the first phase of the procedure of application for international protection in Belgium, the applicant submits his/her application to the ‘Office des Étrangers’. During this phase, he will initially receive a number of forms (Appendix 25, Appendix 26 …). Subsequently, he will receive a first ‘Certificate of Immatriculation’ (orange card). This certificate is valid for a period of 4 months, starting from the submission of the application for international protection (can be extended)

Asylum seekers with a first Certificate of Immatriculation are not allowed to work in Belgium during the period of validity of 4 months. Their attestation will mention “Access to the labour market: no”.

If the applicant for international protection has not received a decision of refusal from the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) during this initial period of 4 months, he will receive a new Certificate of Immatriculation. This certificate will state “Access to the labour market: unlimited”. These persons are therefore allowed to work in Belgium until they receive a final decision.

An asylum seeker with a first Certificate of Immatriculation with “Access to the labour market: no” will now exceptionally be allowed to work.

However, his application for international protection must be registered by 18 March 2020 at the latest. The asylum seeker is only allowed to work when the employer also provides shelter for him/her. Furthermore, the employer is obliged to keep the details of the attestation or a copy thereof in the employee’s file.

This measure applies from 1 April 2020 to 30 June 2020.

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.