Teleworking mandatory again: a Royal Decree specifies the implications

Author: Catherine Mairy (Legal expert)
Date:

As announced at the last Consultative Committee, teleworking is mandatory again from 20 November 2021.

A Royal Decree of 19 November 2021 not only clarifies what this obligation entails, but also which formalities must be completed if it cannot be met.

Teleworking mandatory 

For whom?

Teleworking is mandatory:

  • in all companies, all associations and all services, whatever their size;
  • for all persons employed there, regardless of the nature of their employment relationship;

unless this is impossible due to the nature of the position, or the continuity of the business, the activities or the services.

As a reminder, teleworking must be carried out in accordance with existing collective labour agreements and conventions.

Return to work moments: under what conditions?

Return to work moments may be planned from 20 November 2021 for persons for whom teleworking is mandatory, if the following conditions are met:

  • the purpose of these return moments is to promote the psychosocial well-being and team spirit of these persons;
  • the persons cannot be obliged to participate in the return moments; in other words, regardless of the nature of their employment relationship, the return moments require a mutual agreement between them and the company, association or service with which they are employed;
  • the appropriate precautionary measures should be taken to ensure compliance with the rules of social distancing and a maximum level of protection;
  • the persons must be given prior instructions on all measures to be taken to ensure their safe return;
  • travel to and from work during peak hours by public transport or carpooling should be avoided as much as possible;
  • the persons must be informed that under no circumstances should they return to the workplace if they feel ill, show symptoms of illness or are in quarantine;
  • the employer may not attach any consequence to this for his employees.

The decision to organise return moments must be made in accordance with the social dialogue rules in the company; all the conditions must be checked.

The return moments may amount:

  • from 20 November 2021: up to a maximum of one day per week per person;
  • from 13 December 2021: up to a maximum of two days per week per person.

The following may be present in the establishment unit at the same time each day:

  • from 20 November 2021: maximum 20% of the persons for whom teleworking is mandatory;
  • from 13 December 2021: maximum 40% of the persons for whom teleworking is mandatory;
  • in SMEs employing fewer than 10 persons: up to five persons for whom teleworking is mandatory.

Teleworking not applicable 

Certificate of presence: for whom?

From 20 November 2021, the employer must provide a certificate or any other proof confirming the necessity of their presence at the workplace to all persons:

  • working in their establishment units;
  • regardless of the nature of their employment relationship;
  • and who cannot telework.

Precautionary measures: which ones?

All appropriate precautionary measures must continue to be taken to ensure compliance with the rules of social distancing and a maximum level of protection.

Monthly teleworking declaration

Employers must declare the number of people employed in the workplace every month via www.socialsecurity.be.

  • The NSSO specifies that the online service will be available from 24 November 2021.

Which employers?

This obligation applies to all employers except:

  • SMEs employing less than five persons, regardless of the nature of their employment relationship;
  • the establishments referred to in article 2, 1°, of the Cooperation Agreement of 16 February 2016 between the Federal State, the Flemish Region, the Walloon Region and the Brussels-Capital Region on the control of major accident hazards involving dangerous substances (which was approved by the Act of 1 April 2016);
  • the employers in the health care sector as defined in article 40 of the Act of 20 December 2020 on temporary support measures due to the COVID-19 pandemic;
  • the educational institutions, both for the staff paid by the organising authorities themselves and declared to the NSSO and for the staff paid via a Community Ministry and declared to the NSSO. Important note! This exception does not apply to universities, private schools and other training institutions that pay the wages of all their staff themselves;
  • the police services referred to in article 2, 2°, of the Act of 7 December 1998 on the organisation of an integrated police service, structured at two levels.

Which data?

The employer must declare the following, for each establishment unit:

  • the total number of persons employed on the first working day of the month;
  • the number of persons employed on the first working day of the month who have a job that cannot be practised via teleworking (= job incompatible with teleworking).

'Persons employed' is understood to mean not only the employees, but also other categories of persons, such as, for example, temporary agency workers made use of by the company on a structural basis, the personnel of another employer with whom the company works on a structural basis, etc.

When?

The declaration must be made each month and no later than the sixth calendar day of the month.

What’s next?

Special rules are provided for the period from 22 November 2021 up to and including 31 December 2021: the declaration relates to the situation on 24 November 2021 and must be submitted by 30 November 2021 at the latest.

For the situation on 3 January 2022 (= first working day of January 2022), the declaration must be submitted by Thursday, 6 January 2022.

If the total number of persons employed in the establishment unit and the number of persons who have a job there that is incompatible with teleworking has not changed since the last valid declaration, the employer will not be required to submit a new declaration.

We will keep you informed of the declaration for the next months.

Source: Royal Decree of 19 November 2021 amending the Royal Decree of 28 October 2021 on the administrative police measures necessary to prevent or limit the public health consequences of the declared epidemic emergency situation concerning the coronavirus COVID-19 pandemic, Belgian Official Gazette of 19 November 2021.

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