Since the beginning of the sanitary measures in March 2020 up to and including 10 January 2021, more than 159,917 infringements of these measures have been registered. 1,008 of those files are being handled by the Labour Prosecutor. PwC Legal wants to provide more clarity on these complex measures.
Due to the COVID-19 crisis, teleworking/homeworking has become mandatory again for all companies and for all employees as from 2 November 2020. Consequently, employers are required to let their employees work from home, unless this is impossible due to reasons relating to business continuity or to the nature of the work. Specific rules have been implemented with regard to employees working in ‘essential sectors and businesses’. However, are these employees also obliged to tele/homework if they are able to do so?
Mandatory teleworking/homeworking
Article 2 of the Ministerial Decree of 28 October 2020 containing emergency measures to limit the spread of COVID-19 - as amended by the Ministerial Decree of 1 November 2020 and prolonged until 1 March 2021 by the Ministerial Decree of 11 January 2021 - determines that teleworking/homeworking is mandatory for all companies and employees in Belgium. This obligation does not apply to employees for whom it is impossible to work from home due to the nature of their work duties (i.e. their job content) or due to reasons relating to the continuity of the business of the company. Furthermore, it is up to the employer to decide whether the company’s business continuity or the employee’s job makes teleworking/homeworking impossible. The rationale here is, of course, that, in principle, the employer is best placed to make the correct decisions for its company.
If teleworking/homeworking is impossible
In cases where it is not possible for employees to work from home due to the nature of their work duties or for reasons relating to business continuity, hygienic measures must be taken, and a certificate must be issued to the employee who works at the company’s premises.
Hygienic measures
First of all, the employer must take appropriate action to guarantee a 1.5-metre distance between employees. Furthermore, employers must also ensure compliance with the ‘Generic Guide aimed at preventing the spread of COVID-19 at work’ by ensuring proper ventilation at the workplace, providing masks etc.
Any industry-specific guidelines applicable in this respect must also be complied with. Lastly, also on a company level necessary preventive measures must be established in consultation with the Service for Prevention and Protection at Work.
Certificate
The social inspectorate services will also check companies for compliance with the tele/homeworking obligation. Therefore, an important obligation applies to employers whose employees cannot work from home: such employers must provide their employees with a certificate (or other document) that states the necessity of the employee’s presence on the work floor. The main reason for this obligation is probably facilitating social inspections.
This certificate must mention the name of the employee, identify the employer, and state the necessity of the employee’s presence at the workplace. Furthermore, it can be provided for a defined period of time or can be replaced by any other (electronic) piece of evidence, as long as it can immediately be presented to the social inspectorate. The actual reason(s) for the employee’s physical on-site presence must not be mentioned on the certificate.
Employees in essential sectors and businesses
Article 2, §1, third sub-paragraph of the Ministerial Decree provides that private or public companies in so-called essential sectors and businesses - as defined in the annex to the Ministerial Decree - must take appropriate action to comply, as much as possible, with the social distancing measures referred to in the second paragraph.
In this respect, it seemed like employees in essential sectors and businesses were not obliged to tele/homework, as long as the social distancing measures were complied with to the maximum extent. However, this is absolutely not true. The Belgian social inspectorate confirms that also employees in essential sectors and businesses must work from home unless this is impossible due to the nature of their work duties or due to reasons relating to the company’s business continuity. Furthermore, such employees must have a certificate that proves the necessity of their presence at the workplace. The second paragraph and the third paragraph of article 2 of the Ministerial Decree thus only refer to the appropriate social distancing measures to be complied with within the company.
