As a result of the coronavirus pandemic and the government measures taken to combat it, the normal work schedules are not always suitable.
In view of the need to modify certain work schedules and to derogate from the Labour Law, the FPS Employment interprets the current crisis as an accident that has occurred or that is imminent. This interpretation involves a lot of consequences, which we will explain below.
Accident that has occurred or that is imminent
The Labour Law provides for the possibility of derogating from many rules on working hours in the event of an accident that has occurred or is imminent. The current crisis can be regarded as such an accident.
On the one hand, this interpretation applies to the front-line companies fighting the pandemic itself. For example, the medical sector or companies developing solutions related to this fight (production of mouth masks, medical equipment, tests, etc.).
On the other hand, companies that have applied the government measures to combat this crisis also have to cope with an accident that has occurred or is imminent (direct link).
These include, for example, companies that extend their working hours to allow their employees to comply with the rules of social distancing (1.5 m distance between employees) or to avoid the rush hour in public transport. Another example is the trading companies that adapt their work schedules to respect the maximum number of customers per square meter.
In these different situations, companies can adapt their organisation if necessary to cope with this 'accident' and apply the various working hours derogations.
Normally, employees may not be employed outside the work schedules laid down in the employment regulations.
If the organisation of the company requires work to be carried out outside the planned schedule, this is possible. Employees must then be informed of this new schedule. For employees whose schedule is included in their employment contract, an appendix must be attached to their contract.
Derogations from daily and weekly working time limits
Daily and weekly limits can be exceeded to cope with the crisis. Employees can therefore work overtime if necessary. The limits of 11 hours a day and 50 hours a week do not have to be observed either. However, the average weekly working time may not exceed 48 hours over a period of 4 months.
Those hours do not have to be compensated by time off in lieu if they are worked by employees of the company. If they are worked by employees of another company - a subcontractor - those hours must be compensated by time off in lieu during the reference period. However, 65 hours may be compensated by time off in lieu within three months of the end of the reference period during which those hours were worked.
For these overtime hours, overtime pay must be allocated.
For part-time employees, a derogation register will have to be completed, in the absence of a time recording system.
Derogations for Sunday and night work
In order to cope with the current crisis, employees can also be employed on Sundays and at night. These two derogations, like the others, only apply to the extent that they are necessary.
Controls by the social inspectorate
This interpretation of the FPS Employment allows a great deal of flexibility in the application of working time legislation. However, it should not be abused and only the derogations required by the current situation should be applied. A posteriori controls are possible. In case of abuse, a return to normal schedules will be required and time off in lieu will have to be granted.
Source: Interpretation by the FPS Employment of the Labour Law of 16 March 1971, Belgian Official Gazette of 30 March 1971.