For a number of months now, teleworking has been compulsory, except for when either the employee’s role or the continuity of business operations does not allow for it.
However, many employers have either not been or have been insufficiently respecting this measure and so the government is going to enhance the monitoring of compulsory teleworking by introducing a new online registration obligation for employers.
Starting from April 2021, every employer must submit a monthly declaration via the online portal of the National Social Security Office (NSSO) (Corona telewerkaangifte / Corona déclaration télétravail), at the latest by the sixth calendar day of each month, in which the following data must be provided:
- the total number of persons working for the company on the first day of the month;
- the number of persons who, on the first day of the month, hold a position for which teleworking is impossible.
If a company has various operating units, then it must state the numbers for each operating unit.
The social inspectorate will then use this data as a basis for inspection rounds on compulsory teleworking in which those employees whose functions allow for teleworking and yet who are present in the company must be able to justify their presence.
The penalties for violating the mandatory telework measures will be increased.
Do not forget that, in addition to the new registration requirement, employers are still obliged to provide their employees who cannot telework with a certificate attesting that their presence in the workplace is needed.
1. What must the employer register in the online declaration?
Each month, starting from April 2021, every employer (with the exception of undertakings that are closed on the basis of a mandatory government measure) must submit an online declaration in which the following data is provided:
- The total number of persons working for the company on the first day of the month
The employer must register the total number of employees in the company’s service, as well as - according to the NSSO’s instructions - all temporary agency workers (‘interim workers’), staff from another employer, or self-employed persons whom the company works with on a structural basis.
The following types of person should thus be counted:
- an employee working under an employment contract
- anyone with an apprenticeship contract
- a flexi-worker with an ongoing framework contract
- a sick employee
- an employee benefitting from time credit
- a temporary agency worker if the company calls upon temporary agency work on a structural basis
- an employee of a subcontractor working on a structural basis in the company
- a self-employed person working on a structural basis for the company (e.g. a consultant)
- etc.
It is the number of persons working for the company on the first working day of the month that must be taken into account. So, effectively, ‘a snapshot photo’ of the company is taken on the first working day of the month.
- The number of persons who, on the first day of the month, hold a position for which teleworking is impossible (the ‘non-teleworkable positions’).
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.
Again, ‘a snapshot photo’ is taken on the first working day of the month.
- Companies with several operating units
If a company has various operating units, then it must state the numbers for each operating unit.
The company may give different persons (e.g. different local managers) access to the same registration form.
Companies with more than 20 operating units may submit the requested data concerning all operating units in a structured Excel spreadsheet file.
2. Where must the employer fill-in such a declaration?
The employer must make the declaration via the NSSO’s portal site (Corona telewerkaangifte / Corona déclaration télétravail).
The person who will make the declaration on behalf of the company must log-in by means of his/her e-ID, Itsme or the other technical possibilities offered by the CSAM access system.
If the company is not yet known in the CSAM access system, then it is also allowed for the person to register as a citizen with his/her e-ID or Itsme, in which case he/she must declare in the registration form that he/she is acting as an authorised representative of the company.
3. When must the employer fill-in such a declaration?
The declaration must be submitted on a monthly basis, at the latest by the sixth calendar day of the month. Therefore, the first declaration must be made no later than 6 April 2021.
4. What does this registration mean for possible checks by the social inspectorate?
The social inspectorate will use the registered data as a reference point in the context of inspection rounds on compulsory teleworking.
However, if there is a deviation in the number of employees on the work premises compared to the data entered in the registration tool, then these deviations cannot in themselves constitute grounds for a penalty. The inspection still has to check whether the employer has complied with the provisions on teleworking. Yet, the employer and the employees with a function that allows for telework who are present on the work premises must be able to justify such workers’ presence.
The penalties for violating the mandatory telework measures are being increased.
Non-compliance with the obligation to telework can be penalised with either an administrative fine (from 200 to 2,000 EUR) or a criminal fine (from 400 to 4,000 EUR). If there is an immediate threat to health, then the company may even be closed down.
