Continuing obligation to telework and stricter controls by social inspection services - Toolkit for the employer

Due to the rising infection rates and the observation that the most infections and clusters – apart from education – occur at work, the Conciliation Committee decided last week to maintain the obligatory telework. The controls on telework will also be tightened. In order to facilitate the controls on telework, an additional registration obligation for employers has been introduced.

In preparation for a possible control, we provide in this newsflash an overview of the current obligations that employers must respect in the framework of the obligatory telework.

1.     Carrying out a so-called ‘telework’ risk analysis

Since the Ministerial Decree of 28 October 2020, teleworking is again obligatory, unless it is impossible due to the nature of the function or the continuity of the business, the activities or the service. In order to be able to determine for which functions teleworking is impossible, the employer must carry out a so-called ‘risk analysis of telework’. Concretely, this means that the employer must determine for each function which tasks can and cannot be carried out from home. In function of this and the frequency of these tasks, the employer can then determine for which functions teleworking is impossible.

This risk analysis needs to be distinguished from the general corona risk analysis that the inspection services expect from employers and thus focuses specifically on the (im)possibility of telework. The risk analysis should be submitted for advice to the internal/external prevention service, as well as to the Committee for Prevention and Protection at Work (CPPW) (or trade union delegation/employees in the absence of a CPPW).

2.     Monthly declaration via registration tool: for the first time by Tuesday 6 April!

As from April 2021, all employers must report a limited amount of data to the NSSO every month via the online tool on the website of the NSSO. Only employers who are currently obliged to be completely closed are exempt from this obligation.

Concretely, this concerns the following data:

• The number of persons working at the company.
• The number of persons working at the company with a non-teleworking function.

The declaration refers to the number of employees on the first working day of the month (e.g., Thursday 1 April) and should be submitted by the sixth calendar day of the month (e.g., Tuesday 6 April). When a company has several establishment units, the declaration should be made per establishment unit.

The Social Security Portal (not available in English) provides instructions on how to register and what is meant by a non-teleworking function. For example, persons who are exceptionally present at the company (e.g., to print or to collect material) should not be counted in the number of non-teleworking functions. An important point of attention is that temporary workers, structural personnel of another employer (e.g., subcontractors) and persons employed on a self-employed basis within the company (e.g., consultants and partners) should also be counted when entering the above-mentioned numbers.

The inspection services will use the registered data as a reference in the framework of inspections. Anyone who has a teleworking function, but is still present at the company, must be able to justify his or her presence. In principle, the employer should be able to refer to the ‘telework risk analysis’ carried out.

3.     Issuance of a certificate to employees with a non-teleworking function

For employees with a non-teleworking function, the employer must still provide a certificate confirming the necessity of their presence at the workplace. According to the Ministerial Decree, in principle, another piece of evidence could be given to these employees, but practice has shown that a clearly drafted certificate is the most common.

This certificate does not necessarily have to contain a detailed motivation as to why the employee cannot telework. However, in order to avoid discussion during an inspection, it may be appropriate to do so (in part). This also informs the employee of the reason(s) why teleworking is impossible. After all, we have noticed that inspection services also question employees during inspections, so it is advisable to inform employees properly and clearly.

4.     Taking preventive measures in the workplace if teleworking is impossible

When teleworking cannot be applied, the employer must take the necessary preventive measures to ensure maximum compliance with the social distancing rules. An important nuance to be made in this context is that taking such preventive measures does not replace the obligation to telework.

By ‘necessary preventive measures’, the government means the safety and health regulations as stipulated in the General Guide, supplemented by the guidelines at sectoral and/or company level, or any other measures that offer equivalent protection. Preventive measures must also be taken with due regard for social consultation.

During controls of the preventive measures in the workplace, the inspection services currently focus mainly on taking measures to maintain ‘social distancing’, wearing masks when moving around and measuring/checking the quality of indoor air.

5.     Implementation of telework policy and making agreements on equipment and allowances in the case of telework (CLA no. 149)

On 26 January 2021, the Collective Labour Agreement (CLA) no. 149 was concluded by the National Labour Council, which specifically deals with telework due to the corona crisis. This CLA has a limited period of validity and applies to companies which, on 1 January 2021, had not yet developed a regulation in accordance with the provisions of structural or occasional telework (see also our newsflash of 1 February 2021). This CLA obliges employers, with respect for the rules of social consultation, to make agreements on:

• the provision by the employer of the equipment and technical support necessary for telework (e.g., a laptop and mobile phone);
• in the case of the use the teleworker’s own equipment, the compensation or payment by the employer of the costs of installing relevant computer programs, usage, operating, maintenance and depreciation costs;
• the additional connection costs.

Action point

In view of the increased supervision by the social inspection services of compliance with obligatory telework and the increasingly repressive approach to infringements (sanctioned with criminal or administrative fines), employers are well advised to check whether the various obligations concerning telework in the company are (still) being complied with. The above checklist provides a useful guide in this regard. At the top of your to-do list should certainly be the mandatory monthly registration, which must be carried out for the first time by Tuesday, 6 April 2021 at the latest.