Teleworking mandatory once again!

In view of the worsening epidemic situation, the government has decided to make telework compulsory again. As of 20 November 2021, all workers are obliged to telework, unless the worker’s role or the continuity of business operations does not allow for teleworking.

The employer may arrange for occasions on which workers can return to the office, but these ‘moments of return’ must be limited to one day per week between 20 November and 12 December 2021. From 13 December 2021, workers may work 2 days per week in the office.

The monitoring of compulsory telework is twofold: (i) the employer must provide a worker working in the office with a certificate or other supporting document attesting that his/her presence in the workplace is needed, and (ii) employers will, once again, be obliged to monthly register the ‘non-teleworkable functions’ within their company through the online portal of the National Social Security Office.

1. Who must telework?

Teleworking is compulsory for all companies, whatever their size and regardless of whether or not the company qualifies as a so-called ‘vital company’.

Contrary to the text of previous Royal and Ministerial Decrees, the new Royal Decree of 19 November 2021 explicitly stipulates that the obligation to telework not only applies to employees, but to “all persons working in the company”, regardless of the nature of their working relationship, and thus also including temporary agency workers and self-employed persons.

However, two exceptions are provided for. These are:

• If the person’s role does not allow for telework, OR
• If the continuity of business operations, activities and the provision of services does not allow for telework.

2. Are companies allowed to organize ‘moments of return to the office’?

The employer may arrange for occasions on which workers can return to the office, but these ‘moments of return’ must be limited to one day per week between 20 November and 12 December 2021. From 13 December 2021, workers may work 2 days per week in the office.

Moreover, until 12 December 2021, a maximum of 20% of the persons required to telework may be present in the office at the same time. From 13 December 2021, this maximum will be 40%. For SMEs employing less than 10 people, no more than 5 persons required to telework may be present in the office at the same time.

The ‘moments of return to the office’ must be organised in consultation with the representative bodies within the company.

Workers cannot be obliged to return and the employer may not attach any negative consequence to a refusal.

3. How will compulsory telework be monitored?

The monitoring of compulsory telework is twofold.

Firstly, the company must provide a person working at its premises (worker, temporary agency worker or self-employed person) with a certificate or other supporting document attesting that his/her presence in the workplace is needed.

Secondly, companies will, once again, be obliged to monthly register the ‘non-teleworkable functions’ within their company through the online portal of the National Social Security Office.  

4. How does this online registration of the non-teleworkable functions work?

This online registration is the same as the one that applied during the spring of 2021.

Each month, the employer must submit a declaration via the online portal of the National Social Security Office (NSSO) (Corona telewerkaangifte / Corona déclaration télétravail), in which the following data must be provided:

• The total number of persons working for the company

This includes the employees, but also temporary agency workers, self-employed persons, persons with an apprenticeship contract, flexi-workers, sick employees, employees of subcontractors, etc.

• The number of persons who hold a position for which teleworking is impossible (the ‘non-teleworkable functions)

A ‘non-teleworkable’ function means any function that by its nature must be performed on the work floor.

Any person who is exceptionally present at the company premises because, for example, they have to pick-up materials, print documents or hold an evaluation interview can justify this situation and should not be included in the number of ‘non-teleworkable positions’. Also, executives and persons belonging to line management (e.g. a foreman, a team leader) should not be included.

If a company has various operating units, then it must state the numbers for each operating unit.

In principle, it is the number of persons working for the company and the number of ‘non-teleworkable functions’ on the first working day of the month that must be taken into account. The registration must take place at the latest by the sixth calendar day of each month.

However, for the period from 22 November 2021 up to 31 December 2021, it will be the numbers on Wednesday 24 November 2021 that must be taken into account. The declaration for this period must be submitted by 30 November 2021 at the latest.

If there are no changes for the following months, no new declarations need to be filed.

SMEs employing less than 5 persons, regardless of the nature of the working relationship, are exempted from this obligation.

Written by

• Philippe De Wulf

  Partner

• Esther Soetens

  Counsel