FAQ – Practical advice for employers to deal with Coronavirus – UPDATE 30 March 2020

The government is constantly taking additional measures to contain the spread of the Coronavirus, and to try to alleviate the consequences for the economy.

The latest novelties (since the FAQ 17 March 2020) are as follows:

• The government has determined which companies have to close and which rules apply to the other companies;
• The temporary unemployment procedure for force majeure and for economic reasons has been simplified: a single system of temporary unemployment, known as “Corona temporary unemployment” replaces it; and
• More details are available on the temporary suspension of social elections.

Below you will find an updated FAQ based on the questions we have received from clients and instructions issued by authorities. As the situation develops, we will update our FAQ on a regular basis.

Q1 – In what sense does the procedure temporary unemployment change? 

All situations of temporary unemployment due to the Corona virus are considered temporary unemployment due to force majeure (the so-called “Corona-temporary unemployment (Corona-TU)”), even if it is for example still possible to work on certain days. There is thus no longer a distinction between temporary unemployment due to 'force majeure' and due to 'economic reasons”.

Corona-TU can be granted for all days on which your personnel cannot be employed, but not for half-days. It must not be necessary for the complete staff (e.g. not for the part of the staff that can work from home, but only for the other part of the staff for which telehomeworking is not possible (see Q5) and social distancing (see Q7) cannot be ensured).

Examples of situations that the National Employment Office (NEO or RVA/ONEM) considers as Corona-TU are:

• Companies that the government compulsorily closed (such as bars, sports centers, hairdressing salons…);
• Companies that have to close partially (such as a hotel);
• Companies that can no longer offer work to (part of) their staff (e.g. a supplier of companies that are compulsorily closed);
• Companies with too little work for their staff;
• Companies which have to stop their production because minimum occupancy is no longer reached, e.g. due to absenteeism, sickness, quarantine…;
• Companies whose clients do ae no longer allow access to work.

The system is currently applicable until 19 April 2020, but could possibly be extended until 30 June 2020. For both blue-collar and white-collar workers, the same application is made electronically to the NEO. The details of the employees are entered via a single application form and they automatically end up in the Corona-TU.

The formalities that you have to comply with are simplified and can be found in Dutch and French.

Even though you do currently not have to submit a file to the NEO in order to be entitled to the Corona-TU, we recommend that you build a file and gather sufficient evidence that the activities were stopped or reduces due to the Coronavirus. This will prepare you in case of a possible control by the NEO.

The NEO updates its instructions constantly. For the most recent instruction: see in Dutch and in French.

Q2 – Can I still apply for temporary unemployment for economic reasons?

Yes, in principle this is still possible, but the most recent instructions of the NEO indicate that this is not recommended for the duration in which the Corona-TU can be applied (until 19 April 2020 or extendable until 30 June 2020).

Moreover, the FPS Employment, Labour and Social Dialogue, which deals with temporary unemployment for economic reasons, states on its website that it will not consider applications for recognition as long as the broad application of the Corona force majeure applies. This also applies to applications submitted after 13 March 2020.

If the temporary unemployment is not due to the Coronavirus, the employer could still invoke the system of temporary unemployment for economic reasons. However, this is unlikely to be the case.

As regards the period after this in which the Corona-TU can be applied, it is advisable to consider the possibility of applying for temporary unemployment for economic reasons and, if necessary, to build up a case for this.

Q3 – What is the financial position of employees in Corona-TU?

Employees will receive a temporary unemployment allowance, equal to 70 % of a capped monthly salary of EUR 2.754,76 (until 30 June 2020).

Anyone becoming temporarily unemployed in the period from 13 March 2020 to 30 June 2020 will receive an additional EUR 5.63 per day of temporary unemployment. This means that employees will receive an additional EUR 150 per month (on top of their unemployment benefits) from the NEO.

With regard to the granting of extra-legal benefits, you will have to check case-by-case whether this is possible. This is for instance not so for meal vouchers.

You will need to review your policies related to supplementary insurances (group insurance, hospitalization insurance) carefully, together with your insurer, to check whether the insurance will continue during the Corona-TU. In the meantime, agreements have also been made in the insurance sector regarding the cancellation of premium payments for employees who are temporarily unemployed. Employers will be granted a postponement of payment until 30 June 2020.

Finally, employers may voluntarily decide to pay an extra amount on top of mandatory payments, provided of course that this does not result in employees receiving more than their normal monthly salary. Such amount is not subject to (both employer and employee) social security contributions. However, make sure that you do not make any unlawful distinctions between different categories of employees without objective reasons.

Q4- Are there any other support measures when I have financial problems caused by COVID-19?

The Belgian government has announced some support measures for companies affected by the spread of COVID-19. These support measures must provide financial breathing space and allow companies to bridge their temporary financial difficulties.

The following measures have been announced:

• Payment plan (postponement of payments) for employer’s social security contributions;
• Postponement of payment of social security contributions for the 1st and 2nd quarter of 2020 until 15 December 2020;
• Payment plan for company taxes, VAT, corporate tax, tax on legal entities;
• Postponement with 2 months of payment of company tax, VAT, corporate tax and tax on legal entities;
• Postponement of declaration of corporate tax, tax on legal entities, VAT and annual client listing;
• Exemption from interest or remission of fines for the non-payment of debts of social security contributions, wage tax, corporate tax, VAT, etc;
• Non-application of the special contribution for employers that make substantial use of temporary unemployment for economic reasons;
• Postponement of loan payments;
• State guarantee for new credits.

Q5 – Can an employer force its employees to work from home?

Yes, telehomeworking is the new rule and applies to all companies, except for the companies that are closed by the government’s decision.

However, there is a distinction in the nature of obligations imposed on non-essential companies on the one hand and companies belonging to a critical sector on the other (see Q6 - How do I know if I am a non-essential company or belong to a critical sector?).

• If you are a non-essential company, telehomeworking is compulsory for all staff whose position lends itself to it. For those functions where telehomeworking is not possible, the companies must take the necessary measures to ensure compliance with the rules of social distancing (see Q7). This rule also applies to transport organized by the employer.

This holds a result commitment: if you cannot guarantee this, you will receive a warning and/or a fine and your company may be closed down. The police supervise compliance with these rules.

• If you belong to a crucial sector/have an essential service, you can continue your activities and you are obliged to apply, as far as possible, the system of telehomeworking and the rules of social distancing. You therefore have a best-efforts obligation and will not be sanctioned if you are unable to comply with your obligation.

Q6 – How do I know if I am a non-essential company or belong to a critical sector?

A list of companies belonging to the critical sector/essential services can be found in the annex to the Ministerial Decree of 23 March 2020 on urgent measures to limit the spread of the coronavirus (see in Dutch and in French). For the private sector, this list is translated into the enumeration of the joint committees concerned. If you are included, you belong to the crucial sector/essential services and must continue your activities in so far as possible (see Q5).

The MD extended the previous MD of 18 March 2020 to several crucial sectors and essential services following lobbying by certain employers' organizations.

Q7 – What does social distancing mean?

Social distancing means that you take sufficient preventive measures to avoid the spread of the Coronavirus. The most well-known rule in this respect is the telehomeworking and the guarantee that there is a distance of 1.5 meters between every employee.

We recommend that you carry out a risk analysis per function or activity together with your internal and external prevention and protection services so that you can justify which measures could or could not be taken.

The Supervision of Well-being at Work contacts companies (by telephone) to verify compliance with the rules on social distancing and other health measures. This check is done in the first place by going over a checklist (see: Checklist Prevention COVID 19 in Dutch and in French). Discuss this checklist proactively with your internal or external prevention advisor, so that you are well prepared in case of a control and can give clear answers.

Q8 – Do I need to make agreements with my employees regarding telehomeworking and what does the telehomeworker’s salary package look like?

Telehomeworking is a new form of homeworking, required by the government. This new form does not fall under the rules of occasional (Workable and Flexible Work Act) or structural (CBA no. 85) teleworking. An appendix to the employment contract is not compulsory, but we do recommend making arrangements regarding the necessary equipment and technical support (e.g. provision of a portable computer), the possible accessibility of the employee during telehomeworking, etc. This can take the form of an appendix to the employment contract or of a policy.

Employees who telehomework are entitled to their normal wages (e.g. also meal vouchers). However, it is best to check whether this also applies to all other extra benefits that the employees normally receive. Whether the normal lump-sum allowance can be granted (if employees receive it, of course) will partly depend on which expenses are covered by this allowance and whether these expenses are still incurred in the case of telehomeworking. It will, for example, no longer be possible to receive a travel compensation.

The FPS Finance accepts that a monthly expense allowance equal to EUR 126.94 net is granted. If necessary, a ruling can be requested via the attached document drawn up by the FPS Finance (Dutch or French). Of course, a ruling is not strictly necessary if it remains within the limits.

Q9 – Am I entitled to temporary unemployment benefits if I am obliged to self-isolate because one of my family members is infected with COVID-19?

Yes, but on condition that the employee has a certificate from his general practitioner proving that the employee is not allowed to work, e.g. because a family member is effectively infected under the same roof or when there are serious indications of infection. This is confirmed on the website of the NEO (see instructions NEO). The Corona-TU is applicable in that case.

Q10 – Are employees (who are still at work) entitled to stay at home when the school of their children is closed because of COVID-19?

An employee who needs to stay at home to care for his/her children will in principle not be entitled to temporary unemployment benefits. A lack of childcare is in principle not sufficient to establish temporary unemployment due to force majeure (see instructions NEO).

Employer and employee can agree to use outstanding vacation rights, overtime or compensatory rest, but this requires the employee’s consent.

The employee might take up outstanding rights to unpaid leave for family reasons (maximum 10 days per year for a full time employee), apply for parental leave or ask for occasional work at home.

Q11 – Can my employees move around to do their jobs?

Yes, they can.

In principle, Belgians should stay at home, but this does not apply to carrying out professional movements, including commuting. Employees in critical sectors and essential services that need to move for their work (e.g. delivery to department stores, logistics sector) can do so. There is currently no mandatory certificate or attestation required, but we certainly recommend that you provide your employees with a document proving that their professional movement is essential.

If an employee has to cross the border, we recommend to draw up the certificate demonstrating the need to cross the border (see in Dutch and in French). This way, the employee can present it in case of a possible border control. You will also have to check whether additional obligations apply in the Member State from which or to which the employee travels. There are already special arrangements for France, the Netherlands and Luxembourg.

Q12 – Can an employer ask his staff to submit to a body temperature check?

The Belgian Data Protection Authority has eased its previous FAQ on this subject on its website (see in Dutch and in French).

He DPA considers the mere recording of body temperature not as a processing of personal data. Insofar as temperature recording is not accompanied by an additional recording or processing of personal data, the GDPR does not apply.

We advise the employer to liaise with the internal and/or external health services, in particular with the occupational doctor. If the latter considers that taking the body temperature is not a medical health examination (and should therefore not be done by a doctor, nor be submitted to the legal rules of the Codex Well-being at Work), you could consider implementing it, of course with respect of the employee's right to privacy. This means that employees will have to be informed and that it will have to be assessed on a case-by-case basis if an audit is proportionate in the light of the seriousness of the situation and the purpose (in particular, ensuring the general public health and well-being of employees at work). Certainly for employees working in critical sectors and essential services, this could possibly be justified.

Q13 – What will happen with the social elections of 2020?

On 24 March 2020, the National Labour Council issued an opinion on the temporary suspension of the social elections. However, the Social Elections Act still needs to be amended. The Council advises that the King fixes a new date for the social elections and suggests the period from 16 to 29 November 2020.

You still have to continue the ongoing electoral acts up to and including day X+35 (depending on the election date, this is between 17 and 30 March 2020). This means that:

• the lists of candidates have to be submitted; and
• insofar as there are no candidates, the electoral procedure should be terminated by uploading a specific report of discontinuation.

From day X+36 operations will be halted ('frozen') and postponed until a date to be determined. The compulsory display of the candidate lists by the employer on day X+40 will therefore be postponed. You can neither dispute a candidacy.

When there are candidates, but less than the number of mandates, the report of partial discontinuation must not be uploaded. This should be done on day X+79 and is currently postponed.

Since the candidates will be known, the impact of the protection against dismissal during the occult period might be limited: the protection against dismissal will already apply for these candidates. In some cases, the candidate lists can still be modified up to and including X+76. The Council foresees to suspend the occult protection period for these candidates and resume it 36 days before the resumption of the new social elections calendar (i.e. probably sometime in September/October 2020).

The original date Y will be maintained (depending on the election date chosen, it will be between 11 and 24 May 2020) as a criterion for the examination of the conditions of eligibility, including for deputy candidates.

Q14– Will the social dialogue continue? Do I have to continue the meetings with the works council or the committee?

Yes, social dialogue goes on as normal. The existing consultative bodies will continue to function until the new bodies are in place. This will be later than foreseen, given the temporary suspension of the social elections (see Q12). Where necessary, you will therefore have to inform and consult  with the works council, the committee or the trade union delegation on certain decisions that impact your HR policy.

Meetings with the consultative bodies will continue on a monthly basis, although you will not be able to organize them via a physical meeting unless you comply with social distancing. Meetings will therefore often be held via alternative, digital means of communication and tools.

Other useful links from the Belgian government (in Dutch or French):

• Info about Coronavirus: Dutch and French
• Ministry of Health: Dutch and French
• Ministry of Employment: Dutch and French