Coronacrisis: temporary unemployment after 31 August

Author: Els Poelman (Legal Expert)
Date:

The flexible temporary unemployment 'force majeure' as a general measure expires on 31 August. After that date, only companies that have already used the system for 20% can continue to use it. In this article we will set out the principles. We will inform you about the practical aspects later.

Transitional arrangement with two groups of companies

From 1 September to 31 December 2020 the transitional regime with two groups of companies will be applicable:

  1. companies with at least 20% temporary unemployment in the 2nd quarter of 2020 can continue to benefit from the flexible unemployment force majeure corona, provided they submit an application;
  2. other companies have to switch to the normal system of economic unemployment or suspension of employees, which are temporarily more flexible. See our infoflash of 9 July 2020

The original plan to limit the extension to the sectors with the greatest loss of turnover (horeca, tourism, events...) has been abandoned. We must however nuance:

  • sectors with a compulsory closure during the second quarter meet the 20% criterion anyway
  • for the future, the Minister of Work decided that sectors affected by new sanitary measures will be allocated to Group 1

The criterion of 20% temporary unemployment

A single numerical criterion is used, namely the percentage of temporary unemployment in the DmfA (= quarterly declaration to the NSSO) of the second quarter of 2020.

We start from a fraction, based on the performance codes in the DmfA 2nd quarter 2020

In the numerator:

The sum of the days of temporary unemployment force majeure corona, unemployment due to economic reasons and suspension non-manual workers.

Dmfa: respectively performance codes 77, 71 and 76

In the denominator:

The sum of all the days for which the employer could in theory have introduced temporary unemployment

DmfA: performance codes 1, 2, 3, 4, 5, 10, 11, 12, 13, 20, 21, 22, 23, 24, 25, 26, 60, 61, 70, 71, 72, 73, 74, 75, 76, 77 

This series does not contain all performance codes, because certain days on which the employer has no impact and/or which would falsify the result are removed from the denominator:

  • permitted unpaid absence (performance code 30)
  • incapacity for work compensated via a social benefit (performance codes 50, 51, 52).

The fraction is composed globally for the whole company, manual and non-manual workers together. All days count for 1, whether full or incomplete days and regardless of the regime (full-time, part-time) of the employee in question.

If the result of the fraction is at least 20%, the company may continue to apply flexible temporary unemployment due to force majeure after 31 August.

Example

Company with 10 full-time employees, of which 1 long-term sick employee is compensated by the INAMI/RIZIV.

The 9 other employees have each been unemployed for 1 day/week and have in total 60 other days of absence (public holidays, holidays, leave of absence...)

The fraction is determined with the data of the DmfA 2/2020

Numerator:  9 employees x 1 day x 13 weeks = 117

Denominator: 9 employees x 65 days = 585 (65 days of long-term sickness are left out)

117/585 = 20%, so the criterion is fulfilled

The prior application

Use of the flexible unemployment scheme after 31 August presupposes a prior application, with a statement on the fulfilment of the criterion of 20% temporary unemployment in the second quarter of 2020.

The application is made via the new C106A-CORONA form, which will soon be available on the website of the ONEm/RVA.

It is not yet clear how this form must be submitted (on paper, electronically) and what the application deadline is.  We will inform you as soon as the model and the formalities have been published.

Checks by the ONEm/RVA

The ONem/RVA will formally check the application form beforehand, this means it will check whether the form contains the required information and has been submitted within the deadline.

Only afterwards will the ONEm/RVA carry out checks on the fulfilment of the criterion, i.e. whether the condition of 20% temporary unemployment has been fulfilled on the basis of the DmfA for the second quarter of 2020. It is perfectly possible for the ONEm/RVA to control all the employers involved through simple exploitation of the DmfA.

More details about the timing and organisation of these checks are not yet known, we will inform you as soon as possible.

Penalty

The employer who has wrongfully used the flexible unemployment scheme due to force majeure, i.e. in the event of less than 20% temporary unemployment in the DmfA of the 2nd quarter of 2020, will have to pay the salary for the days of unemployment concerned.

It is not clear whether the legislator will provide for a specific (less severe) sanction.

Flexible temporary unemployment corona

It concerns the continued application of the minimum procedure for temporary unemployment due to force majeure, which is in force since 13 March. 

For the employer this means:

  • any form of temporary unemployment due to the coronacrisis is unemployment due to force majeure
  • no prior notification to the ONEm/RVA
  • no application for benefits (Social Risk Declaration unemployment scenario 2)
  • no issuing of control card C3.2A, no validation book
  • only a monthly declaration of the days of temporary unemployment (Social Risk Declaration unemployment scenario 5) with code 'nature of the day' 5.4 and reason 'force majeure coronavirus’

For the employee this means:

  • single application for benefits via the C.3.2 - WORKER-CORONA

        In the case of unemployment due to a cancelled event, the form C.3.2 - WORKER-CORONA-EVENTS must be used

  • exemption from keeping a control card C.3.2A
  • no admissibility condition, i.e. no occupational history to be demonstrated
  • unemployment benefit of 70% of the capped wage (EUR 2,754.76/month)
  • supplement from the ONEm/RVA of EUR 5.63/day
  • reduced withholding tax of 15% on the benefits
  • flexible compensation conditions, for instance as regards the combination with an activity as a self-employed person or as a volunteer, or as regards the combination with a pension…

Companies not meeting the 20% temporary unemployment criterion

These companies must switch to a normal scheme of economic unemployment or suspension for employees.  Until 31 December 2020, both systems have been made more flexible. More details in our infoflash of 9 July 2020

 

Source: Royal Decree of 15 July 2020,  extending the measures in the fight against the spread of the coronavirus Covid-19 (I), Belgian Official Gazette of 17 July 2020

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