Coronavirus - update: Procedure temporary unemployment for economic reasons for white-collar workers simplified : Extension of the force majeure regime

Until recently, the regime of temporary unemployment due to force majeure could only be applied to employees who were unable to work (because they had been quarantined or  because of a cancellation of their flight), to companies that are dependent on suppliers from an affected region and to companies which had to close down partially or completely (due to the mandatory government measures or voluntarily).

On the other hand, other companies wishing to apply temporary unemployment had to resort to the regime of temporary unemployment for economic reasons, which involves a lot of application formalities for white-collar workers.

However, the Council of Ministers decided last Friday that all applications for temporary unemployment due to Covid-19 will fall under the scope of the regime based on force majeure until 5 April 2020. Furthermore, the procedure has been simplified.

The stricter measures put in place to prevent the spread of the Covid-19 coronavirus, are causing many companies to close down or face a substantial reduction in activities. These companies can suspend the employment contracts of their personnel completely or partially by introducing either a regime of temporary unemployment due to force majeure with retroactive effect as of 13 March 2020.

1. For the duration of the government’s sanitary measures (for now until 5 April 2020): all applications under the force majeure regime.

The Council of Ministers announced on Friday that the regime of temporary unemployment due to force majeure is extended and simplified as of 13 March 2020 until 5 April 2020 (this will probably be extended).  The Unemployment Office has confirmed this over the past few days. For the time being, the FPS ELSD does not process any applications on the basis of economic motives anymore.

In concrete terms, this means the following:

• With retroactive effect as of 13 March 2020 (and for the duration of the government measures in force - provisionally until 5 April 2020), a flexible application of the notion of force majeure is accepted. Force majeure concerns, for example, companies that (partially or completely) close down because they cannot organise telework and thus cannot comply with the rules on ‘social distancing’ during the execution of the work or transport, but also companies that are facing with a decrease in work due to a reduction in turnover, orders, production, …
• It is not required that the company is closed down completely. In practice, this means that some employees may be temporarily unemployed while others may not be. Employees can also alternate working days and unemployment days.
• As an employer, you no longer have to submit an electronic application for temporary unemployment. You only have to make an ‘ASR declaration scenario 5’ as soon as possible on socialsecurity.be ( https://www.socialsecurity.be/site_nl/employer/applics/drs/onem/scen5/about.htm ). In this application, you declare temporary unemployment as ‘force majeure’ by stating the code ‘aard van de dag’ 5.4 and mentioning the reason being “coronavirus”. When entering the salaries, you must also use the correct remuneration codes (which will be communicated by your payroll provider).
• For the period from 1 March until 30 June 2020, as an employer, you are not obliged to issue a control form C3.2A to the employees concerned.
• The employees concerned must contact their payment institution (ABVV, ACV, ACLVB or HVW) to apply for benefits. A simplified form “C3.2-WERKNEMER-CORONA” will be available on the websites of the aforementioned institutions.
• Until 30 June 2020, the unemployment benefits are equal to 70% of the average capped salary of the employee (capped at EUR 2,754.76 gross). A withholding tax of 26.75% will be deducted from the benefit.
• On top of this unemployment benefit, the Unemployment Office will pay the employee a supplement of EUR 5.63 per day of unemployment
• Moreover, the days of temporary unemployment due to the coronavirus in the period from 13 March until 5 April 2020 will be assimilated to annual holidays and it will not be checked whether the eligibility conditions (which in principle apply in the context of temporary unemployment for economic reasons) are met.
• Employers who wish to do so may consider paying a supplement on top of the unemployment benefits and the supplement of the Unemployment Office in order to compensate the loss of salary during the period of temporary unemployment. This supplement will be exempt from social security contributions insofar as the employee does not receive a net total of more than what he would have received if he had continued to work. However, this supplement will be subject to the same withholding tax as the unemployment benefit.

2. After expiry of the sanitary measures: a CBA or business plan is no longer required for temporary unemployment for economic reasons

After 5 April 2020 (or the potential later date in the event of extension), companies that are facing a lack of employment as a result of the Covid-19 coronavirus and that are unable to employ their personnel at the usual rate will, most likely, again be able to benefit from the regime of temporary unemployment for economic reasons.

For blue-collar workers, it suffices to prove that the regular working arrangements cannot be maintained for economic reasons. However, in order to be able to temporarily suspend the employment contracts of white-collar workers, the company must meet certain preliminary conditions. More information about this topic can be found in a previous newsflash. Companies that do not meet these conditions have the alternative option of submitting an application to the Minister of Labour to obtain recognition as being a company in difficulties.

Nevertheless, for white-collar employees, it is required that a collective bargaining agreement at the sectoral or company level or, in the absence thereof a business plan, is concluded prior to the lodging of the application.

In order to speed up this procedure, an interprofessional CBA (CBA n° 147) was concluded last week in the National Labour Council. Companies that are being affected by the Covid-19 coronavirus can invoke this CBA so that they can apply for temporary unemployment for economic reasons for their white-collar workers. Consequently, this implies that these companies would not first have to negotiate a CBA or draw up a business plan. The application form of the FPS ELSD has also been adapted in this sense and provides that as of now the application can be lodged on the basis of the CBA of the National Labour Council.

For now, these measures will be temporarily applicable until 30 June 2020.

CBA n° 147 of 18 March 2020 provides for an information and/or consultation procedure in the framework of which the company:

• must submit an application form to the Unemployment Office in which it is demonstrated that the company meets the requirements. This must be submitted at least 14 days before the regime can be applied;
• must on that same day notify the works council, or in the absence thereof, the trade union delegation;
• must inform the employees at least 7 days in advance of the implementation of such a regime, either by “posting” or by giving an individual written notification to each employee whose employment contract will be suspended;
• must communicate electronically on that same day the notice of the “posting” or of the individual notification of the employees to the Unemployment Office;
• must, on the day of the “posting” or the written notification to each white-collar worker, inform the works council or, in absence thereof, the trade union delegation of the economic reasons that justify the implementation of such a regime.

If the company is recognised as a company in difficulties, each white-collar worker will receive an allowance from the employer amounting to EUR 5 per day of unemployment. If the company also employs blue-collar workers to whom the regime of temporary unemployment for economic reasons was already applicable and to whom a higher amount is being granted, the white-collar workers will be entitled to the same amount as the blue-collar workers.

The duration of the complete and partial suspension of the employment contract cannot exceed sixteen weeks per calendar year in case of a complete suspension of the employment contract and twenty-six weeks in case of a partial suspension.

Existing collective bargaining agreements and business plans which have already been concluded in this context will remain in force. However, companies whose business plans have been submitted but have not yet been approved can submit a new application to the FPS ELSD.

Finally, applications no longer have to be sent by registered mail but can be submitted electronically.

Action point

Until 5 April 2020 (this will probably be extended), companies that are facing a substantial reduction in activities due to the Covid-19 virus can benefit from the regime of temporary unemployment due to force majeure. After the expiry of the sanitary measures, companies in difficulties will be able to apply for recognition on the basis of the interprofessional CBA n°147 if they can prove a substantial reduction in turnover, orders or production due to the coronavirus.