Perspectives

Employment law

COVID-19 Workforce measures and insights

Restrictive measures taken due to COVID-19 have a considerable impact on employers. Below, you can find an overview of recent measures taken by the Belgian government regarding employment law, pensions and benefit.

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9 June 2020 | New royal decree regarding work interruption days because of force majeure based temporary unemployment

The Royal Decree of 4 June 2020 has been published regarding the assimilation of work interruption days, based on temporary unemployment due to COVID-19 driven force majeure, in the system of annual leave for employees, for the period from 1 February 2020 to 30 June 2020 included (Dutch | French).

 

Health and safety of personnel is non-negotiable

Link: Dutch | French

As of 4 May 2020, telework is recommended for all non-essential industries. If telework is not possible, companies should take the necessary measures to ensure maximum compliance with the social distancing rules by taking appropriate preventive measures in a timely manner. If that is not possible, companies are no longer obliged to close (situation prior to 4 May) but must take measures that at least guarantee an equal level of protection.

It is important to consult with the health and safety committee and with the company doctor to assess potential health risks, as well as identify measures to mitigate these risks.

 

Business continuity requires clear rules

For people working from home, it is recommended to have clear arrangements relating to home teleworking, such as working hours, technical support, costs intervention, location, notification procedures in case of a private accident, illness or a work accident, etc. This will also help in case a work accident would occur during telework activity. For other employees, companies will need to make sure that appropriate measures are in place to respect the social distancing rules. If it is not possible to respect these rules in the context of how the activity should be performed, the business should take measures that at least guarantee an equal level of protection.

 

Restart of business

The Belgian government has published a generic guide for employers to implement appropriate preventive measures related to health and safety requirements of material, technical and/or organisational nature. These guidelines can be complemented with other guidelines made at sectoral or company level. At company level, the implementation of the preventive measures is carried out through social dialogue with the consultative bodies.

 

Saving (salary) costs is possible

It is expected that many companies will face a drop in revenue. These companies may also seek ways to reduce recurring costs. For personnel related costs, a number of measures can be considered:

  • Many employees are eligible for temporary unemployment, depending on the circumstances for ‘force majeure’ or economic reasons. For both, different formalities and conditions apply. A simplified temporary unemployment scheme specifically for COVID-19 has been introduced and is applicable until 30 June 2020 (can be prolonged). Lots of information is available on the unemployment office’s website. During such suspension periods, employees receive unemployment benefits (temporarily increased from 65% to 70% of a capped salary), thus reducing the salary costs for the employer.
  • Companies can ask their employees to take up compensatory leave for past overtime and may need employees to stick to planned and agreed upon holidays.
  • Companies should always require a medical certificate when employees claim guaranteed salary. However, many doctors have become more difficult to reach due to the current circumstances; thus, a reasonable approach is appropriate.
  • Subject to following mandatory procedures, companies can consider a collective or individual salary reduction or a working timetable reduction if the above measures are not sufficient to cope with the crisis. If needed, dismissals can also be considered with careful consideration of the applicable thresholds for collective dismissal or multiple dismissals.
  • It should be noted that social security and tax authorities are willing to accept payment plans.

 

Additional indemnity during economic unemployment

Companies placing their employees on an economic unemployment regime, whereby they remain entitled to approximately 70% of their average income (but capped at + EUR 1,920/month), may grant an additional indemnity to their employees on top of the economic unemployment benefits received from the government, in order to mitigate (part of) the income loss of their employees.

  • These indemnities are exempt from the regular employer and employee social security contributions, insofar as they are seen as an addition to a benefit of the legal social security system. As such, the sum of the unemployment benefits and indemnity may not be more than the employee’s regular remuneration.
  • These indemnities are taxable as replacement income (i.e. withholding tax should be withheld at 26.75%) and should thus be reported by the employer. This was confirmed in Circular letter 2020/C/57 (Dutch | French).

 

New measures regarding work force management

With the introduction of the Special Powers Decree no. 14 of 27 April 2020, the government has taken several measures to enable companies in critical sectors to cope with the consequences of COVID-19.

Small flexibility
  • Allows more working hours than the normal work schedule during peak period. Implementation via CBA or work regulation.
Voluntary overtime
  • Allows for 220 extra voluntary hours per year for companies in critical sectors during from 1 April 2020 until 30 June 2020.
COVID-19 overtime
  • Allows for overtime outside normal work schedule, including on Sundays and during nights. Overtime is necessary to treat COVID-19 infection or to prevent possible infection.
Additional hours for employees in time credit/career break (Royal Decree no. 15)

Return from time credit/career break to work at employer belonging to vital sector (agriculture, forestry, …).

Use of posted employees

Temporary derogation from the prohibition to post workers, which allows employers to post its permanent employees to a user belonging to a critical sector during the period from 1 April 2020 to 30 June 2020.

 

Other measures within critical sectors

  • Successive fixed-term contracts for a min. period of 7 days does not entail a contract of indefinite duration;
  • Student work (not included in annual quota of 475 hours);
  • Employment for asylum seekers;

 

Federal government support measures

  • Exemption from taxation on voluntary overtime (220 hours in critical sectors until 30 June 2020)
  • Deferred payment to NSSO (until 15 December 2020)
  • Repayment plan for social security contributions (1st and 2nd quarter 2020)
  • Supplement NEO allowance for temporary unemployment ( EUR 5.63 per day)
  • Telework lump sum allowance: EUR 129.48 per month free of social security contributions
  • Continuation of group insurance for employees in temporary unemployment (13 March 2020 – 30 September 2020): companies have the right to request (i) deferred contributions payment (ii) cease payment of contributions during period of temporary unemployment.
  • Corona parental leave (from 1 May 2020 until 30 June 2020) – Legislation not yet published

Employment law Q&A

Can you forbid employees from travelling?

Business trips: yes

Private trips: in principle no, but you can request to be informed of destination and take necessary measures upon return

What if your employees cannot return from travel and resume work?

Temporary unemployment on grounds of force majeure

What if your employees are placed in quarantine?

Illness or temporary unemployment on grounds of force majeure

What if employees refuse to come to work?

Depends on the mandatory measures imposed by public authorities (essential vs. non-essential entities):

  • Non-essential entities: telework or social distancing; temporary unemployment (subject to company doctor’s instructions) if these are not possible
  • Essential entities: continuation of work (telework if possible). Employee cannot refuse to work if appropriate safety measures are taken

Without medical certificate, this is recorded as unauthorised absence, which justifies dismissal

No entitlement to salary

Prevention measures?

Telework – social distancing – agreed measures within health and safety committee and in consultation with company doctor (!)

What kind of employment measures are available in case of disruption of activities?

Bridging measures

Salary and working time reduction

Termination of contractors

New hire termination or postponement

What kind of economic measures are available in case  of disruption of activities?

Difficulties in paying social security contributions

Social security contributions for employers: (RSZ/ONSS)

  • Social security contributions of the first and second quarter of 2020
  • Repayment plan (monthly payments for a maximum of 24 months)
  • Exemption of interests on arrears and remission of fines for non-payment
  • Procedure: complete the online application form on the social security portal

Social contributions for self-employed contractors: (Directors / management) (RSVZ/INASTI)

  • Postponement of payment by 1 year without interests on arrears
  • Exemptions of payment
  • Reduction of pre-payment of social contributions for self-employed contractors, if income of self-employment is lower than legal threshold
  • Replacement income for self-employed contractors in case of mandatory suspension of self-employment activity due to COVID-19
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