Mandatory telework: to do's for employers

As announced in our earlier e-flash, telework has become mandatory again for all staff (regardless of the nature of the employment relationship, thus applicable to employees and self-employed persons), unless this is impossible due to the nature of the position or the continuity of the business, activities or services. 

Meanwhile, this rule, along with a number of clarifications has been confirmed in the Royal Decree of 19 November 2021 amending the Royal Decree of 28 October 2021 on the necessary measures of administrative police to prevent or limit the public health consequences of the declared epidemic emergency concerning the pandemic.

The new rules became effective on 20 November 2021 and are provisionally applicable until 28 January 2022.

To do’s

Employers must:

• provide a certificate or other evidence to staff who is unable to telework, in which the necessity of their presence at the workplace is confirmed;
• make a monthly registration via National Social Security Office (Dutch or French) of:
  • the total number of persons employed by the enterprise per establishment unit; and
  • the number of persons employed by the enterprise holding a positions where teleworking is not possible.

The declaration refers to the situation on the first working day of the month and must be submitted by the 6th calendar day of the month. For the period up to and including 31 December, it concerns the situation on Wednesday 24 November 2021. The declaration must be submitted by Tuesday, 30 November 2021. If there are no changes for the following months, no new declaration needs to be filed.

Important is that the social inspection services will use these data as reference point when checking compliance with teleworking. Anyone who holds a teleworking position, but is present at the company’s premises will have to be able to justify his or her presence.

Limited return moments are possible

Employers can organize return moments, but they cannot impose them on employees (so they need the employee’s consent):

• until 12 December: maximum 1 working day per week, with max. 20% teleworkers present at the same time (SME <10 employees: max. 5 present at the same time). For the count, the persons for whom telework is impossible, are not counted; 
• from 13 December: maximum 2 days per week, with max. 40% of teleworkers present at the same time (SME < 10 employees: max. 5 present at the same time). For the count, the persons for whom telework is impossible, are not counted.
• Certain conditions are attached to the return moments, namely:
  • objective of return: promote psychosocial well-being and team spirit;
  • the necessary instructions on the measures for a safe return must be given to the staff in advance;
  • the staff must be informed regarding the prohibition to come if they feel sick or are in quarantine;
  • return moments should not imply negative impact for staff;
  • travel during peak hours by public transport or carpooling should be avoided; and 
  • the decision must be made with respect of social dialogue within the company, therefore best done in consultation with the committee for prevention and protection at work, union representatives or if there are none, the employees themselves.

Continuing to take other appropriate preventive measures

Of course, employers still have to take all other appropriate preventive measures, to guarantee e.g. the rules on social distancing for those who go to work. For this, the Generic Guide still applies as a reference point (see Generic Guide Dutch and French).