To do's and points of interest for hr in 2022

Below we have listed a number of to do's and points of interest to consider in 2022.  

• Telework has become a new reality within the work organization due to the Covid-19 pandemic with important consequences for your hr practices. For example, monitoring an employee who teleworks is less evident, as the teleworker can only be assessed remotely based on performance. 
  
  • Hr processes will need to be adapted to this new reality, among other things by (re)organizing feedback, reporting, evaluation and follow-up moments.
  • Provide a clear job description and deliverables (including timing, content) and ensure agreements on the teleworker's reachability: what times or periods should one be reachable, through what means (e.g., cell phone, online, teams), etc.  
  • If you use IT monitoring, make sure that employees and their representatives are informed in advance (e.g. telework policy or IT policy). The employer itself must provide transparent and consistently applied monitoring and, in the event of a dispute, must be able to justify why the monitoring is justified within the organization (accountability). The regulations themselves do not define the scope of the monitoring, but it is certain that it must be proportionate and non-continuous and that there must be sufficient attention to data protection and privacy of employees.  
• Sometimes employers see no other option than to dismiss an employee during or shortly after a period of incapacity for work. In Belgium, dismissal during illness is possible, but recent case law is looking at this with increasing rigor. The risk of challenging the dismissal before a court and the risk that an employer is held liable for discrimination on grounds of disability or health and/or for manifestly unreasonable dismissal (e.g. in the absence of evidence of organizational difficulties) is real. 
  
  • Do not lightly proceed with dismissals during or immediately after incapacity for work and provide sufficient proof of the reasons of dismissal, if not this may cost you a lot.
• The accountability of employers, employees and health insurance funds in the context of the reintegration of the long-term sick remains a hot topic in 2022. The adjustment of the reintegration process and medical force majeure, the use of "back to work coordinators" and sanctions for employers and employees are among the possibilities for action. For example, companies with an average of at least 50 employees will be liable for an accountability contribution equal to 0.625% of the total salary mass in the event of an excessive inflow of employees into disability. 
  
  • Check your company's efforts to reintegrate long-term sick employees, adjust them if necessary and take the necessary actions if the number of employees on disability evolves unfavourably so you can avoid an accountability contribution after all.
• For certain companies, there would be an abolition of the medical certificate for absence for 1 day. For further concretization, we are waiting legislative initiatives.
  
  • In any case, remember to align your work rules with this change if it were to occur.
• According to European case law, employers would be obliged to introduce in general a time registration system. This is currently not compulsory in Belgium, except in specific cases, e.g. in the case of gliding hours.
  
  • Keep a close eye on the evolution of the legislation in this area, so that your working hours remain in line with the regulation. Flexible working with the necessary attention for a healthy work life balance remains an important point of attention. Check whether your working hours regulations provide sufficiently for this.
• If you wish to provide flexible remuneration of your employees, it is time to think about the modalities for the reference year 2022. When introducing a mobility budget or the greening of the company car fleet, employers need to take into account the new rules and the tax advantage diminishing over time.
  
  • Make sure you have sufficient budget and set clear targets. Consider the type of variable remuneration you wish to introduce (CBA No. 90, cash, bonus pension plan, profit sharing, shares, warrants, etc.) and make sure you implement the employee benefit correctly in your pay policy.
• Even employers who are compliant with the basic obligations under the GDPR would do well to pay due attention to the decisions of the Dispute Resolution Chamber of the DPA. The Dispute Chamber not only interprets the data protection legislation (GDPR and national legislation), but also gives a practical interpretation to the rather general principles of the legislation. Some of these therefore have an hr impact.
  
  • Continue to pay the necessary attention to GDPR-compliant processing of hr data: 
    
    • Ensure that personal data is not held in different locations/systems, minimize personal data to what is strictly necessary and/or ensure that you know where personal data of staff is kept and for which hr purposes. 
    • Remember to timely and correctly respond to questions from your staff regarding access to their personnel files. 
    • Review existing hr practices against the decisions of the Dispute Resolution Board, provide necessary hr documents (e.g., IT policy that defines, among other things, what happens to an employee's mailbox upon exit) and, where necessary, modify existing hr processes or roll out new processes.
• Meanwhile, Belgium was supposed to transpose the Whistleblower Directive into national legislation by the end of December last year, but this has been delayed (see here). This legislation will probably be in place by this summer. 
  
  • Larger companies would do well to already make timely preparations to implement the internal reporting channel. For smaller organizations (< 250 employees) we recommend to wait for further legislative developments. 
  • For more information, please check our special webpage.
• The Posted Workers Directive No. 2018/957 was transposed into Belgian law by the Act of 12 June 2020 containing various provisions on the posting of workers (the Posting Act) which amended the Act of 5 March 2002 on working, wage and employment conditions in the event of the posting of worker in Belgium and its compliance. The Posting Act now provides that after a secondment period of 12 months (possibly extended by 6 months), a broader set of labour and employment conditions will apply. Since the previous legislation already provided that all provisions of Belgian labour law subject to criminal sanctions were applicable, only a limited number of provisions need to be complied with additionally after the period of 12 months (possibly extended by 6 months). This concerns, for example, provisions relating to guaranteed wages in the event of illness or accident, birth leave and leave of absence. 
  
  • Verify that the correct labour law is applied both with respect to employees posted from abroad to Belgium and with respect to employees posted from Belgium to other European member states. 
• All EU member states have agreed in the Administrative Commission that the Covid-19 neutralization for working days abroad will be extended until 30 June 2022. Thus, for the time being, a changed work pattern will not cause the applicable social security system to change as well. This is the case, for example, for an employee who normally works in France and is socially insured there, but works from home in Belgium during the pandemic. In the normal application of the rules, a change of the country of work would also mean a change of the applicable social security system, but during the pandemic the employee will remain socially insured in France. To make use of the neutralization principle, the changed work pattern should only be a consequence of the Covid measures and should normalize again as soon as the measures end.
  
  • Please note that this does not automatically mean that there is no need to apply for an A1 certificate. European regulations still require this, although some countries are now also temporarily deviating from this principle. 
• Following the 2021-2022 Interprofessional Agreement, the deadline for the harmonization of supplementary pensions for blue and white collar workers was extended by 5 years. The harmonization must be completed by 1 January 2030, and no new distinction may be created until that date, unless it aims to eliminate the difference in treatment ("stand-still" principle). The joint labour committees have until 1 January 2027 to draw up and submit to the Ministry of Work one or more sectoral collective bargaining agreements that should end the difference in treatment by 1 January 2030.
  
  • Take a timely look at the existing pension plans for blue and white collar workers in your company and closely monitor developments in the sector. In addition, watch out for the standstill principle when modifying existing pension plans or introducing new pension plans.

Lydian's Employment team is ready to advise and assist you again this year. Contact us if we can help you with your hr and employment law.