Temporary unemployment due to force majeure in case of closed schools: the law has been published

The law granting the employee the right to be absent from work when the institution that takes care of his child closes, was published in the Belgian Official Gazette on 30 October 2020.

For the days of absence, the employee may receive temporary unemployment benefits due to force majeure.

The ONEm/RVA has also specified that this right can be invoked for the days that extend the autumn half-term break.

Principle

Your employee has the right to remain absent from work without pay:

• when a minor child with whom he is cohabiting is unable to attend his day-care centre or school because the day-care centre, school or class to which he belongs is closed due to a measure aimed at limiting the spread of the coronavirus;
• when he has a dependent disabled child, regardless of that child's age, and that child is unable to go to the disability day-care centre because that centre is closed or the intramural or extramural service or treatment organised or recognised by the Communities has been temporarily interrupted due to a measure aimed at limiting the spread of the coronavirus.

Your employee maintains this right as long as the child in question cannot return to the day-care centre, school or disability day-care centre.

Formalities

The employee who makes use of this right must inform you immediately.

He must also have a certificate completed (available on the website of the ONEm/RVA) by the school, the day-care centre, the disability day-care centre or the intramural or extramural service or treatment organised or recognised by the Communities. Afterwards, the employee immediately submits you the certificate that he has completed and co-signed.

This certificate confirms the closure of the said institution/interruption of service and indicates the period for which the closure/interruption of service applies.

Benefits

Your employee is entitled to temporary unemployment benefits due to force majeure paid by the ONEm/RVA. He also receives a supplement of € 5.63 from the ONEm/RVA per day of temporary unemployment.

Procedure

The procedure you must follow to declare employees (faced with the closure of the day-care centre, school or disability day-care centre/interruption of service) as temporarily unemployed due to force majeure currently varies according to whether or not your company/sector was exceptionally hard hit by the coronacrisis.

Companies/sectors that were exceptionally hard hit by the coronacrisis

You can only resort to the simplified procedure of temporary unemployment due to force majeure 'COVID-19' (by submitting only a Social Risk Declaration - scenario 5) for the employees (who are faced with the closure of the day-care centre, school or disability day-care centre) if your company:

• was exceptionally hard hit by the coronacrisis (see our Infoflash 'Coronacrisis: temporary unemployment after 31 August') or,
• belongs to a sector that was exceptionally hard hit by the coronacrisis (see our Infoflash 'Coronavirus: the list of severely affected sectors has been published').

You must, moreover, keep the certificate of closure that your employee has submitted to you at the disposal of the services of the ONEm/RVA, in the event of an inspection.

Companies/sectors that were not exceptionally hard hit by the coronacrisis

If you do not meet the conditions to be eligible for the simplified procedure of temporary unemployment due to force majeure 'COVID-19', you must follow the ordinary procedure of temporary unemployment due to (classic) force majeure. You will then have to complete all the formalities necessary for this type of unemployment, namely:

• send an electronic notice of temporary unemployment due to force majeure to the ONEm/RVA, with the mention ‘Garde d’enfant pour fermeture d’école’ (Childcare due to school closure) as the reason for temporary unemployment,
• send the certificate of closure that the employee has submitted to you (by post or e-mail) to the Temporary Unemployment Department of the competent ONEm/RVA office,
• submit a ‘Social Risk Declaration scenario 2' at the beginning of the period of temporary unemployment,
• issue the check form C3.2A to your employee on the 1st actual day of unemployment of the month,
• submit a ‘Social Risk Declaration scenario 5' at the end of each calendar month.

What about the days that extend the autumn half-term break?

The ONEm/RVA has announced that employees who will have to take time off from work to look after their children during the days of the extended autumn half-term break will be able to receive temporary unemployment benefits due to force majeure 'school closure'. This extension of autumn half-term break is in fact considered to be a school closure following a measure to limit the spread of the coronavirus. 

Two important clarifications

1. Temporary unemployment force majeure to look after a child is not possible during the period covered by the ordinary school holidays, as this is not a school closure following a measure to limit the spread of the coronavirus.

• As this is a general measure, the school must only issue the certificate of closure corona if the employee expressly requests it (because you yourself requested it). If your company is not recognised as an exceptionally hard-hit company or does not belong to a sector that was exceptionally hard hit, you only have to send an electronic notice of temporary unemployment due to force majeure to the ONEm/RVA, with the mention ‘Garde d’enfant pour fermeture d’école’ (Childcare due to school closure) as the reason for the force majeure. You do not have to send the certificate of closure to the ONEm/RVA.

Date of entry into force

This law entered into force with retroactive effect on 1 October 2020. It will apply until 31 December 2020, unless a Royal Decree extends its validity.

Sources: law of 23 October 2020 extending temporary unemployment force majeure corona to employees in the event of closure of their child’s school, day-care centre or disability day-care centre, Belgian Official Gazette of 30 October 2020; ONEm/RVA.