Unemployment force majeure Covid-19: duty to notify!

Special Powers Decree No. 37 introduces new formalities and a new obligation for the employer when he invokes the suspension of the performance of the employment contract with regard to an employee because of a situation of temporary force majeure resulting from the Covid-19 epidemic (e.g. lack of work due to absence of customers).

These formalities and obligation apply from 13 July 2020.

Formalities

Notification to the employee(s) 

The employer must inform each employee who is temporarily unemployed due to ‘force majeure Covid-19’ by means of a notification. This notification must be made at the latest on the day before the start of the announced unemployment scheme and, in any event, before the employee goes to work.

The following employees are concerned:

• those who are temporarily unemployed for the first time from 13 July 2020 at the earliest;
• or those who are made temporarily unemployed 'again' from 13 July 2020 at the earliest.

The notification should be made:

• either individually;
• or collectively, but only where the introduced unemployment scheme (scheme of complete suspension or reduced working time scheme) concerns several employees at the same time and on condition that each employee is clearly informed of the scheme to which he is subject.

This notification shall state the following:

• the period covered by the notification (start date and end date of the period of temporary unemployment);
• the days (dates) or the number of days on which the employee is temporarily unemployed and, where appropriate, the days (dates) or the number of days on which the employee is expected to perform work activities;
• (in the case of collective notification) the names, first names and social security identification number of the unemployed employees.

The notification should be made:

• either orally;
• or in writing; a written document is strongly recommended in order to be able to provide proof of notification in case of an inspection or dispute afterwards.

Informing the employee(s) 

The employer must inform the employee(s) who is (are) temporarily unemployed due to 'force majeure Covid-19' of the formalities he (they) must complete in order to receive temporary unemployment benefits

As a reminder, the employee must submit an application for benefits to the payment body of his choice at the latest at the end of the second month following the month in which he was first made temporarily unemployed, using form ‘C3.2-TRAVAILLEUR-CORONA’.

Informing should be done:

• either orally;
• or, preferably and always for a matter of proof, in writing.

Modification of the introduced unemployment scheme

Each time the employer increases the number of temporary unemployment days 'force majeure Covid-19' initially foreseen or the employee moves from a reduced working time scheme to a scheme of complete suspension and this from 13 July 2020 at the earliest, the employer is obliged to make a (new) notification to the employee(s) concerned.

If, on the other hand, the employer wishes to call upon the employee to perform work activities after the notification has been made, the temporary unemployment 'force majeure Covid-19' can be withdrawn or suspended without the need for a new notification.

Informing the works council or, in the absence of such a body, the trade union delegation

An employer who invokes temporary unemployment 'force majeure Covid-19', modifies, withdraws or suspends it, must inform the works council or, in the absence of such a body, the trade union delegation.

Penalty for failure to comply with the notification to the employee(s)

If the employer does not comply with the requirements concerning notification to the employee(s), he will be obliged to pay the employee(s) the normal remuneration for the period prior to the completion of this formality.

Partena Professional helps you to fulfill your obligations by providing you with a model of an individual notification and a model of a collective notification.

Duty not to call upon third parties or students

The employer may not outsource the work that should normally have been carried out by the employee during the suspension of the performance of the employment contract due to 'temporary force majeure Covid-19' to third parties or have it performed by students.

In the event of non-compliance with this duty, the employer will be obliged to pay the employee concerned the normal remuneration for the days during which he has outsourced his normal work to third parties or has had students perform it.

Source: Special Powers Decree no 37 of 24 June 2020 implementing Articles 2 and 5 of the Act of 27 March 2020 authorising the King to take measures in the fight against the spread of the coronavirus Covid-19 (II) to support the employees, Belgian Official Gazette of 3 July 2020 (Art. 11).