We have divided the measures in five sections:
1. Temporary coronavirus unemployment regime
1.1 Temporary coronavirus unemployment regimes as of 1 September 2020
(i) Application of a transitional unemployment regime based on economic reasons between 1 September 2020 and 31 December 2020
The Federal Government decided on Friday 20 March 2020 to implement a temporary coronavirus unemployment regime based on force majeure. If an employer is faced with a temporary unemployment situation due to the coronavirus breakout, then this is automatically considered as force majeure. The “RVA”/“Onem” has also simplified the administrative procedure. This exceptional regime applies until 31 August 2020.
From 1 September 2020, a transitional regime will enter into effect and apply until 31 December 2020. From 1 January 2021, the “regular” temporary unemployment regimes, i.e. temporary unemployment based on economic reasons or temporary unemployment based on force majeure, will in principle again fully apply (i.e. as they already existed before the start of the Covid-19 crisis).
In essence, the transitional regime implies that employers still facing a reduced workload as a result of the Covid-19 crisis could implement a “light version” of the traditional temporary unemployment regime based on economic reasons.
The key features of this “light version” are as follows:
- Blue-collar workers
- The maximum period during which a blue-collar worker’s employment contract can be suspended is set at 8 weeks (as opposed to 4 weeks under the regular regime) for a full-time suspension and 18 weeks for a partial so-called “large suspension” (as opposed to 3 months under the regular regime). After such an 8 week or 18 week period, the employer has to introduce a full-time effective working week before having the option again of fully suspending a blue-collar worker’s employment contract due to a lack of work based on economic reasons.
- White-collar employees
- An employer should not meet the “preliminary requirements” when implementing a temporary unemployment regime based on economic reasons. The employer only has to demonstrate that it is faced with a substantial decrease of at least 10% of its turnover or the production in the quarter preceding its request compared with the corresponding quarter in 2019.
- An employer can only implement a temporary unemployment regime based on economic reasons if such a regime is provided within a sector-level collective bargaining agreement, a company-level collective bargaining agreement or a company plan, similar to the regular regime. However, there is to a certain extent a simplification as the company plan must no longer be submitted to the FOD WASO/SPF Emploi for approval by the “Company Plans” commission. By abolishing this additional administrative hurdle, an employer can implement much more quickly a temporary unemployment regime based on economic reasons as the “Company Plans” commission’s decision could take 2 weeks.
- Similar to blue-collar workers, the maximum period during which an employer can rely on temporary unemployment based on economic reasons is being extended as follows: 24 calendar weeks (as opposed to 16 weeks under the regular regime) per year for a full-time suspension or 34 calendar weeks (as opposed to 26 weeks under the regular regime) per year for a part-time suspension.
- An employer should offer its white-collar employees two training days per month if a full-time or part-time unemployment regime based on economic reasons is implemented.
Also in this “light” version of a temporary unemployment regime based on economic reasons, the employer remains liable for the payment of a supplement on top of the unemployment allowances.
Of course, if employers can still demonstrate that they meet the conditions for a “regular” temporary unemployment regime based on force majeure, then they can apply for this regime as well. No specific transitional “light” version of this regime is provided for in the period between 1 September 2020 and 31 December 2020.
(ii) Continued application of the temporary regime of unemployment “Covid-19 force majeure” until 31 December 2020 in companies and sectors that are substantially impacted by the Covid-19 crisis
As an exception to the above, the temporary “Covid-19 force majeure” unemployment regime can continue to be applied for after 31 August 2020 by companies or by sectors that are substantially impacted by the Covid-19 crisis.
Companies substantially impacted by the Covid-19 crisis are companies with a number of unemployment days based on economic reasons or based on “Covid-19 force majeure” of at least 20% of the number of working days declared to the NSSO (save for some exceptions).
The in-scope sectors are determined by the Minister of Work in a list included in the Royal Decree of 10 September 2020. These sectors include, amongst others, the aviation sector, the events sector and the hotel and catering industry.
An employer will thus have to prove that either it belongs to a sector on the list, or had at least 20% temporary unemployment days during Q2 2020 compared with the total number of days declared to the NSSO to be able to continue to apply the simplified ‘Covid-19 force majeure’ temporary unemployment regime.
Employees employed by such an employer that is substantially impacted by the Covid-19 crisis also continue to benefit from some additional simplifications until 31 December 2020, such as the exemption concerning being in possession of a control card.
1.2 New information obligations for the employer implementing a temporary regime of unemployment “Covid-19 force majeure”
An employer implementing a temporary “Covid-19 force majeure” unemployment regime has the obligation to inform the employee of certain elements, such as the start and end date of the temporary unemployment regime and the number of unemployment days. This information should be communicated to the employee at the latest the day prior to the start of the temporary regime of unemployment. If more than one employee is affected, then the information can also be shared collectively, but is subject to additional requirements.
If an employer does not comply with this information obligation towards the employee(s), then the employer is liable for the payment of the regular salary for the entire period during which the employer did not comply with the information obligation.
An employer should comply with the information obligations: towards the employee(s) who is (are) put on a temporary “Covid-19 force majeure” unemployment regime for the first time; towards the employee(s) who is (are) again put on a temporary “Covid-19 force majeure” unemployment regime as of 13 July 2020; and towards employees for whom the temporary “Covid-19 force majeure” unemployment regime as of 13 July 2020 changes (e.g. a switch from a partial suspension of the employment contract to a full-time suspension).
An employer implementing a temporary “Covid-19 force majeure” unemployment regime or changing the arising modalities has to inform the works council, or in its absence, the trade union delegation.
1.3 Prohibition on replacing temporary unemployed employees with students or third-parties
An employer implementing a temporary “Covid-19 force majeure” unemployment regime cannot have the work normally done by the employee put in temporary unemployment by a student or by a third-party (e.g. a freelancer), unless the employee is put in a temporary regime of unemployment as a result of a quarantine measure.
In the case of non-compliance, the employer is liable for the payment to the employee of the regular salary for the entire period during which the employer relied on a student or a third-party.
1.4 Days of ‘Covid-19’ temporary unemployment are assimilated to working days for the calculation of the number of holidays and holiday pay in 2021
Both the number of holiday days and holiday pay are calculated on the basis of the number of days worked and assimilated days (e.g. days of illness) during the ‘holiday service year’ (i.e. the previous year).
However, the situation of temporary unemployment due to force majeure as a result of Covid-19 did not appear in the list of days assimilated to working days in the holiday legislation, which meant that many employees risked having fewer holidays and less holiday pay in 2021.
A Royal Decree has now assimilated these days of 'Covid-19' temporary unemployment for force majeure with days worked for the period from 1 February 2020 to 31 August 2020. There would also be an agreement within the National Labour Council to further extend this assimilation during the period from 1 September to 31 December 2020, but this has not yet been confirmed by Royal Decree. Employers will receive compensation that will gradually increase as the employer is more affected by the Covid-19 crisis.
2. Medical certificate "quarantine"
If an employee has to put himself/herself in quarantine but is capable of working and is not sick, then he/she should immediately inform the employer of that fact. If so requested by the employer, the employee has to submit a “quarantine” medical certificate issued by the employee’s personal physician.
For the period covered by such a “quarantine” medical certificate, the employer is not liable for the payment of (guaranteed) salary. If telework is not possible, then the employee might possibly benefit from unemployment allowances based on a temporary unemployment regime for force majeure.
3. Consumer voucher
To strengthen purchasing power and to support heavily-affected sectors, employers can grant a “consumer voucher” to their employees up to an amount of a maximum of EUR 300. Provided certain requirements are met, such consumer vouchers are granted on a tax and social security exempt basis (the principles are similar to the requirements with offering employees meal vouchers and/or eco vouchers on a tax and social security exempt basis).
Consumer vouchers can be used in horeca, certain sports and culture facilities.
Consumer vouchers are valid until 7 June 2021.
There is no automatic obligation for employers to grant consumer vouchers to their employees, unless such an obligation would result from a CBA concluded at sector level.
4. Corona parental leave
A new “corona” parental leave scheme has been introduced in the context of the Covid-19 crisis. This corona parental leave allows employees to reduce their working time by 1/5 (only for full-time employees) or by 1/2 (only for full-time employees or employees working at least 75%) in order to take care of at least one child who must not have reached the age of 12 (or 21 in the case of a child with a disability).
An employee can benefit from this corona parental leave provided (i) the employee has been bound for at least one month by an employment contract with his/her employer and (ii) the employer agrees with such a request.
During the corona parental leave, employees receive a higher allowance from the “RVA”/“Onem” than what they would have received during an ordinary parental leave
The corona parental leave can be taken from 1 May 2020 to 30 September 2020.
5. Specific measures for companies recognised as a company in restructuring or a company in difficulties
Specific supporting measures apply for companies recognised as a company in restructuring or a company in difficulties. The status of a company in restructuring or a company in difficulties can be obtained without needing to enter into a collective bargaining agreement implementing an ‘unemployment with company allowances regime at a reduced age’.
5.1 Temporary working time reduction in the framework of the Covid-19 crisis
Employers can implement a ¼ or 1/5th working time reduction, possibly in combination with a 4-day working week, which would be formalised in a company CBA or by amending the company’s work rules in the absence of a trade union delegation.
Such a working time reduction can be implemented for a duration of a maximum of 1 year. The start and end date should fall within the period of recognition as a company in restructuring or in difficulties. The ultimate start date of the recognition period is 31 December 2020.
Employers who implement such a temporary working time reduction can benefit from a social security contribution reduction.
The employer should provide the employees with a compensation (to compensate for the loss of salary as a result of the working time reduction). This compensation can be financed by the aforementioned social security saving (the wage compensation amounts to at least three quarters of the amount of the flat-rate social security contribution reduction).
5.2 Covid-19 time credit
An employer can propose to its employees to reduce the working time by 20% or by 50% during a period of a minimum of 1 month and a maximum of 6 months. The start and end date of such a Covid-19 time credit should fall within the period of recognition as a company in restructuring or in difficulties. The ultimate start date of the recognition period is 31 December 2020.
If an employee accepts the proposal, then a written addendum to the employment contract should be entered into prior to the start of the Covid-19 time credit regime.
During a Covid-19 time credit period, the employee is entitled to allowances from the unemployment administration (“RVA”/“Onem”).
If an employee is terminated by the employer during a Covid-19 time credit period with immediate effect, then the indemnity in lieu of notice will be calculated based on the theoretical full-time salary.
5.3 End-of-career path (“landingsbanen”/“emplois de fin de carrière”)
An employee employed by a company in restructuring or in difficulties can apply for an end-of-career path arrangement reducing the working time by 20% or 50% as from the age of 55, provided the employee can demonstrate a professional career of at least 25 years.
The start of such an end-of-career path arrangement should fall within the recognition period, the latter starting between 1 March 2020 and 31 December 2020.
6. Voluntary overtime hours in critical sectors
Employees can perform 120 additional voluntary overtime hours between 1 April 2020 and 30 June 2020 for employers in the critical sectors. The remuneration for the 120 additional voluntary overtime hours are exempt from social security contributions and should therefore not be indicated in the DmfA or DmfAPPL.
7. Employer and employee social security contributions
7.1 Postponement of social security contribution payments
The following 3 categories of employers can postpone the payment of both employer and employee social security contributions that are due between 20 March 2020 and 15 December 2020 (save for certain exceptions):
- Companies affected by a closure ordered by the State (e.g. the hospitality (catering), recreation, culture and sports sectors)
= automatic postponement.
- Companies that are closed because:
- they are unable to comply with the social distancing measures (i.e. a distance of 1.5 metres between each person), or
- they have decided themselves to close down completely for a reason other than not being able to respect the social distancing measures (e.g. because they have had to cease their production/sales as a result of the closure of suppliers/customers).
‘Complete closure’ means that production and sales have ceased, but it does not prevent a limited number of employees from working within the company for reasons of safety, administration, necessary maintenance, etc.
= postponement on the basis of a ‘declaration of honour’. This exception can only be invoked by employers who have submitted a ‘declaration of honour’ by 31 July 2020 at the latest.
- Companies that do not close but see their economic activity significantly reduced for Q2 2020, i.e.:
- a reduction of at least 65% of the turnover of Q2 2020 compared to the turnover of Q2 2019 or Q1 2020 (as evidenced by the VAT returns); and/or
- a reduction in the wage bill declared to the National Social Security Office (NSSO) for Q2 2020 by at least 65% compared to Q2 2019 or Q1 2020
= postponement on the basis of a ‘declaration of honour’. This exception can only be invoked by employers who have submitted a ‘declaration of honour’ by 31 July 2020 at the latest.
This ‘declaration of honour’ can be found on the NSSO’s website (in Dutch or French) and must be submitted via a web application on the NSSO’s website for which you must have a secure access.
However, the obligation to submit the NSSO declaration within the normal deadlines remains in force.
More information can be found here (in Dutch) or here (in French).
7.2 Social security contributions instalment plan
Companies that are demonstrably economically-affected by the Covid-19 virus and therefore are having difficulties paying their social security contributions, can make a request to the NSSO for an instalment plan for the first two quarters of 2020. This will allow companies to pay the social security contributions in monthly instalments over a period of a maximum of 24 months. The NSSO can exempt the employer from the payment of surcharges and interest for late payments provided that all social security contributions have been paid.
Such an application is made by means of an online application form (in Dutch or French).
7.3 Social security implications in case of Covid-19 telework in a cross-border situation
The Belgian social security authorities have decided that, exceptionally, periods of telework performed on Belgian territory by employees who normally work in another EEA Member State but who, as a result of the Covid-19 pandemic, are (partly) teleworking in Belgium (e.g. because Belgium is their home country) will not be taken into account for the purpose of determining the applicable social security legislation. These periods of teleworking in Belgium due to Covid-19 will thus be ‘neutralized’ and will not entail any change of social security regime, without there having to be any formalities to comply with. This decision to make abstraction of ‘Covid telework’ will be valid until 31 December 2020.
However, the change in working place must be due solely to the measures taken in connection with Covid-19 and the situation must return to normal as soon as the Covid-19 measures have ended.
8. Tax measures
Companies and self-employed persons that can demonstrate that they are economically affected by the coronavirus outbreak can benefit from a repayment plan in the fields of personal, corporate and legal person income tax, VAT and withholding tax, without any fines or interest on late payment.
Applications must be submitted by 30 June 2020 using the form available on the FPS FINANCE’s website. One application may be submitted per debt, which applies to all measures at the time of receipt of a notice of assessment or payment.
For a self-employed person, a reduction in advance payments may also be requested.
It is allowed to submit corporate, legal person and non-residents tax declarations until 30 April 2020. Deferment of submission of VAT declarations is also provided for.
An automatic deferment of two months is granted for the payment of VAT and withholding tax to all companies, without conditions, penalties or interest on late payment.
Also for the payment of personal, corporate and legal person income tax, an additional period of 2 months will automatically be granted without charging late payment interest.
Finally, all those submitting VAT monthly returns - including those who do not have a monthly refund authorisation and who are not considered to be a 'starter' either - will, under certain conditions, be able to benefit from an accelerated refund of the VAT credit on their current account. More details are available here (in Dutch) or here (in French).
On 6 June 2020, for sectors in difficulty, including the hospitality sector, various tax measures have been taken to mitigate the socio-economic impact of a gradual resumption of activity such as:
- Horeca: VAT on all services, except alcoholic beverages, reduced to 6% until 31 December 2020;
- A partial exemption from payment of withholding tax for the next 3 months for severely affected sectors which had to resort to temporary unemployment.
On 12 June 2020, the government also took the following additional measures to encourage investment:
- A new COVID-19 'tax shelter' system, temporary until the end of the year and open to all SMEs affected by the COVID-19 crisis.
- An increased investment allowance (25%) for investments made between 12 March and 31 December 2020.
- The increase from 50 to 100% of the deductibility of costs related to the organisation of events and catering until 31 December 2020.
- The suspension of the VAT advance of December 2020. Companies normally have to pay an advance before 20 December and this will be postponed by one month.
9. Measures for self-employed persons
9.1 Replacement income (Bridging credit)
Self-employed persons who are either confronted with a partial or complete closure ordered by the State or self-employed persons who have/had to interrupt their activity in March, April, May and/or June 2020 for at least 7 consecutive calendar days in each of these months as a result of the coronavirus outbreak, are entitled to a replacement income (‘crisis’ bridging credit) for the months of March, April, May and June 2020. Sectors that were allowed to restart their self-employed activity, even with restrictions regarding social distancing, could only receive the crisis bridging credit during the month of June 2020 if they completely interrupted their self-employed activity because of Covid-19 for at least 7 consecutive calendar days (even if they did fall under a compulsory closure measure in the previous months).
The crisis bridging right for self-employed persons has been extended for the months of July and August 2020 (for the time being) for the following 2 categories:
(i) Self-employed persons who are still affected by closure measures (e.g. the entertainment sector);
(ii) Self-employed persons who are no longer subject to the required closure measures, but who decide to interrupt their activity for at least 7 consecutive calendar days per month provided however that they demonstrate a clear causal link between the interruption of activities and Covid-19 on the basis of objective elements (e.g. a substantial decrease of their income or customer reservations, an increase in the number of cancellations, etc.).
Self-employed persons in a secondary occupation who owe provisional contributions that are at least equal to the minimum contributions for self-employed persons in their main occupation can also benefit from this measure.
The monthly payment amounts to € 1,291.69 (without a family charge) or € 1,614.10 (with a family charge).
9.2 Replacement income (‘Restart’ Bridging Right)
A separate “restart” bridging right will be provided to support the self-employed during their restart. Self-employed persons can apply for this replacement income during the months of June, July and/or August 2020. It is aimed at self-employed persons who have had to cease their activities (due to a closure ordered by the State) during more than one complete calendar month in the first phase of the Covid-19 crisis but who have restarted their activities since 4 May 2020. The self-employed must be able to prove a loss of turnover or orders during the second quarter of 2020 of at least 10% compared to the same period in 2019 that is solely related to the Covid-19 crisis.
As is the case for the ‘crisis’ bridging right, the monthly payments under the ‘restart’ bridging right regime amount to € 1,291.69 (without a family charge) or € 1,614.10 (with a family charge).
A ‘restart’ bridging right cannot be combined with the crisis bridging right.
More details are available here.
9.3 Measures relating to the payment of social security contributions
For the four quarters of 2020 (Q1 - Q4 2020), the payment of social security contributions can be postponed by one year.
This means that the contributions for the first quarter of 2020 must be paid before 31 March 2021, the contributions for the second quarter of 2020 before 30 June 2021, for the third quarter before 30 September 2021, and for the fourth quarter before 15 December 2021.
Postponement of payments can also be obtained for final instalments for the year 2018 that are due in 2020.
To benefit from this measure, an application can be submitted until 15 September 2020 to the self-employed person’s social insurance fund (unless a payment postponement is only requested for Q4 2020, in which case the deadline is 15 December 2020).
In addition, self-employed persons can, as before, request a reduction (when their professional income is below one of the legal thresholds) or even an exemption (when they are in severe 'financial difficulties') from payment of the social security contributions.
Finally, the social security fund will no longer send reminders or enforce orders for unpaid social security contributions until further notice.
9.4 Coronavirus parental leave
In line with employees, self-employed persons can also rely on a system of coronavirus parental leave under similar conditions as employees.
Their replacement income will be paid out by their social insurance fund.
9.5 Reimbursement of medical expense
If a self-employed person is infected with the Covid-19 virus, he/she is entitled to a work incapacity benefit paid by the health insurance fund, provided that he/she is incapable of working during a period of at least 8 days. In that case, he/she will receive a benefit as from the first day of incapacity.
10. Fiscal debts and bankruptcies
Establishment of a temporary moratorium on company bankruptcies and extension of payment terms included in the reorganisation plan.
11. Banking support
Affected SME’s and self-employed persons can benefit from a deferral of payment regarding existing credits until 30 September 2020, without extra cost. In addition, they can also benefit from a new guarantee scheme for credits opened before 30 September 2020 with a maximum duration of 12 months and for a maximum credit amount of € 50 million per undertaking.
12. Public procurement contracts
Service providers to whom Federal public procurement contracts have been awarded do not receive fines for delays in the execution of these contracts if they are affected by the Covid-19 outbreak. In addition, the authorities undertake to speed up the payment deadline for these contracts.
13. Travel sector
As far as the travel sector is concerned, in the event of the cancellation of a package holiday, a voucher of equal value, valid for at least one year, will be granted.
14. Hospitality sector
As far as the hospitality sector is concerned, there will be flexibility in the application of "take away" (tax and FASFC – with no new licence required for restaurants). Brasseries, in turn, will not be penalised in the event of under-consumption.
15. Events sector
As far as the events sector is concerned, purchased tickets are still valid if the event is postponed. If the consumer is unable to attend the event, then sufficient time is provided for making the refund.
16. Agricultural and horticultural sector
As far as the agricultural and horticultural sector is concerned, the period of seasonal work will be doubled.
Do not hesitate to contact Esther Soetens for further information.
The above information is merely intended as comment on relevant issues of Belgian law and is not intended as legal advice. Before taking action or relying on the comments and the information given, please seek specific advice on the matters that are of concern to you.