CORONAVIRUS IN BELGIUM
Q&A FOR EMPLOYERS

You will find below our answers to the main questions about the impact of CoVID-19 on business operations and labour relations. We update this information as government announcements are made and new issues arise. This information is of a general nature: for detailed advice, contact one of our lawyers or our taskforce at: covid@sotra.be (Last update : 11 May 2020)

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  • TEMPORARY UNEMPLOYMENT
  • From 13 March 2020 and for the duration of the measures imposed by the public authorities, the National Employment Office (NEO) accepts a flexible application of the concept of "force majeure" (Act of God). All situations of temporary unemployment related to the Coronavirus are considered as temporary unemployment for force majeure (even if, for example, it is still possible to work on certain days).

    This situation is exceptional and temporary. In any case, the lack of work or the impossibility of fulfilling the employment contract, justifying the recourse to temporary unemployment, must be directly linked to the health crisis we are currently facing. For concrete examples of cases in which the simplified temporary unemployment regime for force majeure is admitted by the NEO, we refer you to the following links: Info sheet E1 and FAQ of the NEO (version of 24/03/2020).

    For the application of this simplified scheme, it is not required that the company be totally closed (NEO  link - info sheet E1).

    In practice, this means, on the one hand, that only certain workers can be made temporarily unemployed and, on the other hand, that workers can alternate days of unemployment and days of work.

    Simplified formalities for the employer and the employee

    From 13 March 2020, and for the duration of the restrictive measures decided by the authorities (for the time being, until 5 April 2020), the formalities to be carried out by the employer are greatly simplified.

    The employer only has to introduce, as soon as possible, a "DSR scenario 5" for temporarily unemployed workers. The employer must indicate "force majeure" as the reason for temporary unemployment, and mention the code "nature of the day" 5.4 and "coronavirus" as the reason.

    The employer should not wait until the end of the month to introduce this DSR Scenario 5, but should do so in the course of the month, as soon as all data up to the end of the month is known.

    For more information about this declaration, we refer you to the dedicated page of the FPS Social Security website: link.

    For formalities that no longer have to be completed by the employer, we refer you to the following NEO page: link.

    In order to apply for benefits from the paying body, the worker can use a simplified form (Link: form C3.2 - CORONA WORKER). For the period from 1 March 2020 to 30 June 2020, the worker must no longer be in possession of a C3.2A control card, regardless of the reason for temporary unemployment.

    Financial situation of the worker placed in temporary unemployment

    A temporarily unemployed worker shall not receive his remuneration from his employer.

    He is entitled to unemployment benefits corresponding to 70% (until 30 June 2020) of his average monthly remuneration capped at EUR 2.754,76 gross.

    The gross allowance is subject to a withholding tax of 26,75%. However, no social security deductions are made.

    A worker who is temporarily unemployed for reasons of force majeure ("coronavirus") receives, in addition to the unemployment benefit, a supplement of EUR 5,63 per day payable by the NEO.

    The employer is not obliged to pay a supplement. However, he may grant it voluntarily.

    According to the NEO, the payment of a supplement by the employer is compatible with the receipt of temporary unemployment benefit, provided that the total of the two does not exceed the net salary that the worker would have received if he had normally worked.

    According to the NSSO, the supplement to temporary unemployment benefits is not subject to social security contributions. In fact, it is a complementary benefit to one of the branches of the social security.

     
  • On 20 March 2020, a simplified temporary unemployment regime was announced in the context of the current Covid-19 crisis. For more explanations about this scheme, we refer you to the questions in this Q&A devoted to it.

    This exceptional regime has consequences on temporary unemployment for economic reasons of employees, and in particular on the prior procedure for recognition as a firm in difficulty.

    Thus, on 23 March, the FPS Employment indicated that during the period of flexible application of temporary unemployment for force majeure by the NEO (provisionally until 5 April 2020), it is no longer necessary to submit an application for recognition as a firm in difficulty. During this period, the FPS Employment will not take any action on such a request.

    This also applies to applications submitted since 13 March 2020.

    According to the FPS Employment, this situation is linked to the fact that currently (and provisionally until 5 April 2020), "all temporary unemployment situations linked to the Coronavirus are considered as temporary unemployment for reasons of force majeure, even if, for example, it is still possible to work on certain days" (link).

     
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  • According to the administrative instructions recently issued by the NEO, a worker who has reduced his working time under the time credit or career break scheme may be placed on temporary unemployment as part of his reduced working hours.

    The worker is considered as a voluntary part-time worker and is entitled to payment :

    • Temporary unemployment benefits for the days of work that were originally intended to be worked;
    • Compensation payable by the NEO for days of work interruption related to the reduced working hours scheme.

    The NEO's Career Interruption Service confirmed us that this possibility also exists in the regime of reduced working hours linked to parental leave.

    In this case, the worker could perceive :

    • Unemployment benefits for the days of work that were originally intended to be worked;
    • Interruption allowances payable by the NEO for periods of interruption of work related to parental leave.

    In all of the above cases, the employer must indicate in the electronic Declaration of Social Risk (scenario 5) :

    • The days on which the worker was supposed to work and for which he is to receive temporary unemployment benefits ;
    • The days on which the worker was not supposed to work and for which he must receive compensation in connection with the corresponding reduced working time scheme.
     
     
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  • THE EXIT PHASE
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  • SAFETY AND WELLBEING
  • When a worker can no longer perform his or her work due to signs of COVID-19 infection, the normal rules for incapacity to work apply, including :

    • Except in cases of force majeure, the worker is obliged to notify immediately his employer of his incapacity to work. If a CLA or the work regulations so prescribe, or, failing that, if the employer invites him to do so, he must produce a medical attestation justifying his incapacity to work ;
    • An employee who is unable to work will, in principle, be entitled for a certain period (usually one month) to guaranteed remuneration payable by his employer. He will then benefit from the allowances payable by his mutual insurance company.
     
  • The employer has a general obligation to ensure "as a good father" that the work is carried out under suitable conditions from the point of view of the safety and health of workers. He must take the necessary measures to promote the well-being of workers in the performance of their work, including the protection of their health at work. In order to determine whether the employer has fulfilled his obligations, account must necessarily be taken of his activity, the material and technical means which he can reasonably have recourse to, and the current highly exceptional circumstances.

    The employer must in all cases respect the current restrictive measures. If his activity is not part of the critical or essential sectors, and if it is not possible to make a worker work in the context of telework (taking into account, for example, the nature of his duties or the technical means available to the employer), the employer may continue to make him work at the workplace only on condition that he can guarantee compliance with the rules on social distancing, in particular the maintenance of a distance of 1.5 metres between each person. Failing this, he must suspend the employment contract or even close down the business and stop the activity if the rules of social distancing prevent him from continuing the activity.

    The employer must also analyze the risks associated with COVID-19 to determine and take the measures that it can technically and reasonably take to prevent or limit its spread (limiting access to common areas - washrooms, dining hall, etc. - to one person at a time; if possible, provide tools or equipment for protection; eliminate meetings; etc.).

    In critical or essential sectors, the employer must also take measures that can technically and reasonably be applied to avoid or limit the risks. However, the employer's responsibility will be assessed taking into account the emergency and/or shortage situation he is facing (for example, the employer cannot be blamed for not providing masks to all staff if there is a shortage; also, depending on the employer's activity, it may sometimes be more difficult to enforce social distancing). In these sectors where the activity must continue (typically health care), the employer cannot be blamed for continuing the activity even if it puts his workers at risk.

    Workers also have a role to play. It is their responsibility to ensure, as far as possible, their own health and safety and the health and safety of other persons concerned (including their fellow workers), in accordance with their training and the employer's instructions.

     
  • As part of his obligation to ensure the health and safety of workers, if the employer has legitimate reasons to fear that a worker is infected and that this poses a risk to the health of the worker (because by working he may worsen his state of health) or to that of other workers (because there is a risk of contagion), he may invite him to leave the workplace and consult his GP.

    As a matter of principle, however, the employer cannot force the worker to do so, nor can he require the worker to provide a medical certificate certifying that he is able to work and that he is not infected (for example, because the worker shows signs of infection or because he or she has just returned from a risk area). The employer can check the reality of an incapacity to work, but cannot check the ability to work.

    In the current context, given the high risk of contagion of the disease and the public health interest, it seems to us that the employer could refuse the worker to continue working if he presents clear symptoms of the disease, until he has consulted his treating physician. The employer will be careful to preserve evidence, such as testimonials from co-workers. 

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  • WORK ARRANGEMENTS
  • Qu’est-ce que le congé parental corona ?
  • Unlike structural telework, there is no formalization obligation for occasional telework. However we recommend communicating at least the following guidelines to workers:

    • The "widespread" occasional telework is temporary, in view of the exceptional situation. The employer may, at any time, relax or reinforce this possibility, depending on subsequent developments;
    • A worker must inform his or her manager and the human resources department in advance, for each day for which he or she wishes to benefit from telework. The employer has the right to refuse this possibility;
    • Workers are reminded that while teleworking, they must continue to carry out their normal duties. The employer may ask the workers concerned to be contactable during normal working hours;
    • In addition workers themselves must ensure that the necessary (technical) measures are taken so that they can carry out their work properly.
     
     
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  • Some employers in key sectors (hospitals, care) may be facing to a shortage of workers for certain functions, while other functions become less critical. In this case, the employer may need these less busy workers to assist for the critical tasks. Can he force them to do so, if they do not agree? 

    Until now the government hasn’t taken any "requisitioning" measures. We must therefore stick to the basic principles. The employer will first check whether the employment contract provides for a certain flexibility in the function performance. If not, his ius variandi should allow him to temporarily assign the worker to critical functions, only if these are in line with the worker's physical and intellectual capacities, without (too) important modification of his working hours and with the maintaining of his remuneration. There is no case law in situations such as the one we know, but we believe that a worker who refuses such a reasonable temporary reassignment would probably commit an abuse of rights : the benefits he would derive from such a refusal would be disproportionate to the inconvenience suffered by the employer or even the community, in the case of a hospital for example.

     
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  • REMUNERATION
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  • Under the temporary unemployment regime for economic reasons (employees), the employer is obliged to pay a supplement to the unemployment benefit for each day not worked. The amount is either provided for in a sector-specific collective agreement or, failing that, set out in a company collective agreement (minimum EUR 2 per day) or a company plan (minimum EUR 5 per day). This supplement is not subject to social security contributions, but to withholding tax.

    Under the unemployment regime for force majeure, there is currently no legal obligation to pay a supplement to unemployment benefit. The employer is, however, free to grant such a supplement voluntarily, provided that he does not make any discrimination between employees.

    In its latest administrative instructions, the NSSO confirms that the supplement in question does not constitute remuneration liable to social security contributions. However, the NSSO specifies the following condition: the sum of the NEO allowance and the supplement payable by the employer may not result for the worker in receiving a net amount greater than that which he would receive by working normally.

    The NEO confirmed us this position by e-mail dated 26 march 2020. 

     
  • In the case of blue-collar workers, the law provides that the right to the guaranteed salary exists only if the worker would have been entitled to his normal remuneration if he had not been ill (art. 56 of the Act of 3 July 1978). It follows that he is not entitled to the guaranteed salary payable by the employer if he is unable to work during a period of temporary unemployment, regardless of whether the incapacity for work began before or during the period of temporary unemployment.

    The FPS Employment, Labour and Social Dialogue considers that the same reasoning applies whether it concerns temporary unemployment for economic reasons or temporary unemployment due to force majeure, and that the same rule must be applied by analogy to employees, even if the law does not expressly provide for it.

    It should be remembered that a worker who is unable to work is also not entitled to unemployment benefits. He or she must therefore apply for incapacity benefits from his or her health insurance company.

     
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  • Many employees are obliged to work from home. In this context the question arises as to which expense allowances, exempt from taxes and social security contributions, can be granted to employees for the duration of the health measures.

    In its administrative instructions, the NSSO states the following:

    • Office allowance: All workers who, as part of the health measures taken to fight Covid-19, carry out their work from home may be granted a lump-sum allowance of €126,94 per month. This office allowance covers costs such as heating, electricity, small office equipment, etc. There is no requirement for a teleworking agreement to be concluded.
    • Allowances for the professional use of the private Internet connection and PC: The NSSO accepts a lump-sum of € 20 per month for the worker's use of his/her own Internet connection. The same lump-sum is accepted for the use of his/her personal computer. These two allowances can possibly be cumulated with the office allowance.

    The employer may therefore grant the employee who performs his services from his home a flat-rate expense allowance of up to € 166,94 per month. You can find the conditions of application of this allowance by clicking on the following link: Link.

    The NSSO also makes the following clarifications:

    • Other actual costs: If the worker has to incur other expenses (use of his/her own telephone, purchase of a monitor or a scanner, etc.), the employer may also reimburse them. In this case there is no flat-rate and the reimbursement must be based on the actual costs.
    • 10% expense allowance for teleworkers: For the worker who performs structural telework, the employer may possibly grant a flat-rate expense allowance of maximum 10% of the gross pay, instead of the office allowance. In this case the pro rata principle provided for in the telework agreement should be applied (e.g. 10% out of 2/5ths of the monthly pay if 2 days of telework are provided for in the agreement).

    The employer who, before the health measures, reimbursed the teleworker's expenses on the basis of this 10% flat-rate may continue to do so. This scheme is not accepted for the worker who temporarily performs his services at home as part of the containment measures. He is not considered to be a teleworker in the proper sense of the term.

    The Advance Ruling Service, which is competent for tax rulings, has accepted the above-mentioned amounts as an expense allowance for telework (see note on the Advance Ruling No. 2015.341 of October 20, 2015). Employers can therefore, in principle, assume that the tax authorities will accept the same lump-sum allowances in the context of the Covid-19 crisis.

    Finally, we draw your attention to the fact that the employer cannot be forced to pay an expense allowance to the workers in the context of the Covid-19 crisis.

  • COLLECTIVE LABOUR LAW
  • Yes, but the electoral calendar is changing.

    The social partners propose the suspension of the electoral procedure from day X+36. Concretely, the electoral procedure will be "frozen" from that day, i.e. between 17 and 30 March 2020, depending on the date of the elections initially planned within the employer.

    The social partners suggest that the federal government set the date for the social elections from 16 to 29 November 2020. Accordingly, the election procedure should be resumed between 23 September and 6 October 2020. This will be the new day X+36. 

    On the basis of an opinion of the social partners meeting within the National Labour Council, the first consequences of this freezing of the electoral procedure are as follows:

    • The election procedure should continue normally until X+35: the workers' representative organisations should submit their lists of candidates within the time limit initially set ;
    • In principle, the choice of the new social election day (Y-day) would not be free. The Y-day would automatically result from the logical integration of the originally chosen Y-day into the new electoral period. However, the work council  and the Comitee could agree otherwise. A new calendar of electoral procedure would follow from the new day Y chosen;
    • If there are no candidates at X+35, the employer would have to wait until the electoral procedure is resumed (new day X+36) to post the notice announcing the termination of the electoral procedure;
    • If there are candidates at X+35, the display of candidate lists at X+40 should also await the resumption of the electoral procedure ;
    • Candidates presented at X+35 benefit from the protection against dismissal granted by the law of 19 March 1991 on special arrangements for the dismissal of workers representatives ;
    • During the election procedure, in certain circumstances, workers' organisations may replace candidates until day X+76. Candidates presented as replacements should be protected against dismissal from the 36th day before the new day X+36. This would create a new hidden protection period. Depending on the new day X+36, it would start between 18 and 31 August 2020 and end when the replacement candidates are presented;
    • The second seniority requirement for temporary agency workers should be neutralised during the suspension period of the election period ;
    • The existing social consultation bodies should normally continue their work until the installation of the newly elected representatives ;
    • Current worker’s representatives who do not stand for re-election in the 2020 social elections would continue to enjoy special protection against dismissal until the day the new social consultation bodies are installed.

    The social partners invite the FPS Employment, Labour and Social Dialogue to examine the problems raised by the suspension of the electoral procedure and to propose solutions.

    Source: Opinion n° 2160 of the NLC of 24 March 2020 concerning the temporary suspension of the procedure for the 2020 social elections.

     
     
     
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  • PRIVACY
  • The management of the crisis by employers raises the question of the processing of workers' personal data (mainly "health" data).

    Every employer remains fully committed to the principles of the GDPR, despite the current exceptional circumstances. Any violation remains subject to sanctions, now or, more likely, after the crisis. The Data Protection Authority ("DPA") also emphasizes that, during the Covid-19 crisis, any person concerned can normally lodge a complaint with it, via an online form. 

    The main points of attention for employers are as follows: 

    • As a matter of principle, it is prohibited to process sensitive personal data falling under the so-called "special" categories (information relating to the health of workers, in particular) (art. 9 of the GDPR);
    • As an exception, subject to strict safeguards, the employer may process this type of data (collection and storage of medical certificates,…). In order for the processing to be lawful, the employer must have a specific legal basis. In our view, the grounds that may be invoked here as a matter of priority are : 
      • Treatment necessary "for the purposes of preventive or occupational medicine" (article 9.2 (h) of the GDPR);
      • Processing necessary "for the purposes of fulfilling obligations in the field of employment law" (Article 9.2 (b) of the GDPR);
      • Treatment necessary "for reasons of public interest in the field of public health" (Art. 9.2 (i) of the GDPR), provided that the employer is acting in compliance with directives imposed by the authorities;
    • The employer must be transparent to the workers with regard to the processing of their data. If specific measures are taken during the Covid-19 crisis (to organise telework), it is required to adapt the information provided to workers (categories of data processed, purposes, storage period,…). The employer will therefore ensure that the Privacy Policy (or any other communication channel) is amended and that workers are informed of this change;
    • The employer must document his data protection policy. To this end, it seems to us that the register of processing activities should include the processing of personal data specifically carried out in the context of current crisis management;
    • In all circumstances, the employer is bound by the principles of minimisation and proportionality. In concrete terms, for any measure adopted, the employer must consider the following question: "is the personal data I process effectively and strictly necessary to achieve the specific purpose pursued (ensuring the safety and health of staff, ensuring the smooth running of the company, continuity of activities, etc.)"? 

    In addition, the Data Protection Authority has taken position on several concrete situations that any employer may be confronted with. The following two situations are particularly noteworthy:

    • Can an employer compel an employee to complete a medical questionnaire (or a questionnaire about recent travel)?

    No. An employer cannot compel a worker to complete such a questionnaire. However, our supervisory authority recommends that workers be encouraged to spontaneously report risky trips or symptoms to the employer.

    • Can the employer reveal the name of an infected worker to other workers?

    No. This information is covered by the protection of the GDPR, as the employer is obliged, inter alia, to respect the principle of confidentiality (Article 5.1(f) of the GDPR). This prohibition in principle is, however, not absolute. According to the DPA, the employer must be able to inform other workers of the existence of contamination, taking care not to mention the identity of the person concerned.

    Source: website of the Data Protection Authority (https://www.autoriteprotectiondonnees.be/covid-19-et-traitement-de-donn%C3%A9es-%C3%A0-caract%C3%A8re-personnel-sur-le-lieu-de-travail)

     
     
  • This is a very sensitive issue, as it balances the right to privacy of the sick worker against the employer's obligation to ensure the health and safety of other workers of the company.

    If a worker informs the employer that he has been contaminated with Covid-19, the employer will first of all take care :

    • To remove him from work immediately;
    • To ask the worker permission to inform the other workers of the company, while preserving the anonymity of the sick worker. If the worker gives his authorisation, we do not see any obstacle to informing the other workers in the company who have been in contact with that worker, provided that the anonymity of the worker is preserved;
    • To inform the prevention consultant of the situation and to collect his opinion.


    If the worker refuses to give permission to inform colleagues of his or her contamination, the situation is more problematic.

    As soon as it may be essential for colleagues to be informed so that they can take the necessary precautionary measures themselves, we believe that it is the employer's duty to inform them, in fulfilment of his general obligation to ensure the health and safety of workers at work.

    If necessary we recommend that the employer consult the prevention consultant about the situation. Furthermore, when informing the employees, the employer must be very careful to preserve absolutely the anonymity of the sick employee. He will also invite the informed workers to contact the prevention consultant for any questions.

     
  • GOVERNMENT MEASURES
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  • On 16 March 2020, the authorities announced the following support measures:

    • A payment plan for employers' social contributions: for the contributions relating to the first and second quarters of 2020, the COVID-19 issue will be accepted as an element allowing the use of amicable payment deadlines. For more information, click here link.
    • A payment plan for withholding tax, VAT and corporation tax: under certain conditions, terms and conditions of deferment, deferral and/or exemption from payment will be granted for VAT payments, payments relating to withholding tax and corporation tax. For more information, click here link.

    On 18 March 2020, the Walloon Government announced a series of support measures aimed at alleviating the impact of the measures taken by the National Security Council to limit the spread of the virus.

    In this context, the Government announced the establishment of an extraordinary solidarity fund of 350 million euros, distributed as follows:

    • EUR 233 million to support MSEs and the self-employed in the sectors affected by the crisis through lump-sum compensation ;
    • 115 million in support measures for the health and social sectors ;
    • 2 million for local authorities in compensation for the elimination of taxes and fees for companies and self-employed people affected by the coronavirus crisis.

    Businesses that are directly and indirectly affected by the decisions of the National Security Council and that meet the definition of a micro or small enterprise can thus receive a "compensatory allowance". The amount of this allowance is :

    • 5,000 per undertaking which is either completely closed down or which has ceased operations as a result of decisions adopted by the authorities and which belongs to the following sectors: catering, accommodation, the activities of travel agencies, tour operators, reservation services and related activities, retail trade ;
    • 2,500 € per company that has to change his closing days without being closed all week, in application of the decisions adopted by the authorities (personal services - hairdressers).

    For more information about these support measures of the Walloon Government, we invite you to consult the following link: link.

     
     
  • PUBLIC SECTOR
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