Telework and the law: National Labour Council expands regulatory patchwork with CLA on COVID-telework
Telework went from being an obligation, to only a recommendation before going back to an obligation at the end of last year. Since 2 November 2020, telework is compulsory again unless it is impossible due to the nature of the function or for motives related to business continuity. Companies operating within so-called “essential sectors” are exempted from this obligation, but still have to make sure to apply the social distancing rules to the maximum extent possible.
Belgian labour law provides for two types of telework:
- Structural telework, regulated by CLA n° 85; and
- Occasional telework, regulated by the Law on Flexible and Workable Work.
Both provide for a different set of rules on the subject of (inter alia) reimbursement of costs, provision of equipment, procedure, etc.
As soon as the government made it compulsory for employees to work from home, the question of the applicable legal framework ((i) or (ii)) soon arose. Since telework performed in the context of the pandemic did not seamlessly fit in with either of the two existing legal frameworks, it was regarded as a “sui generis” regime for which there was no legal framework.
Against this background, the National Labour Council adopted a CLA providing for a legal framework for COVID-telework for companies who did not already put in place a structural or occasional telework regime before 1 January 2021. By such a teleworking regime is meant arrangements made on the subject in a CLA, an individual agreement or a policy adopted in accordance with the rules on social concertation.
Questions could arise as to whether the CLA on COVID-telework applies to companies who did not already have a regime on structural or occasional telework in place but only a sui generis COVID-telework regime, or to companies who have implemented a unilateral policy (e.g. on occasional telework). Cautious employers would do well to assume that this is the case.
The CLA on COVID-telework stipulates that parties must make arrangements on the provision of the necessary equipment and the reimbursement of additional connection costs. With regard to these additional connection costs, the CLA on COVID-telework only imposes that “arrangements” must be made on the subject. One could in this case argue that the arrangement not to reimburse any such costs complies with the CLA. On its website, the Federal Public Service Employment, Labour and Social Dialogue however took the position that an obligation to reimburse connection costs already rests with the employer on the basis of his general obligation under article 20 of the Law on Employment Contracts (i.e. the employer’s general obligation to provide the employee with the tools and materials necessary for the performance of the work).
Beside the obligatory arrangements on the necessary equipment and the reimbursement of additional connection costs, parties can also make further arrangements on subjects like specific working time schedules, rules on monitoring, the employee's accessibility and unreachability, etc.
The CLA on COVID-telework further provides for a separate chapter on the wellbeing of the teleworker, according to which the employer is obliged to provide the employees with information on (inter alia) the company’s prevention policy on telework (covering subjects such as the proper use of display screens and the available ICT-support). The CLA on COVID-telework also requires employers to take adequate measures to ensure that the teleworkers stay connected with colleagues and the company to prevent isolation. In this context, it even refers to organized and limited return to the office moments, which seems to be in violation of the latest telework obligation.
The arrangements to be made pursuant to the CLA on COVID-telework should be included in a CLA concluded at company level, the work regulations, an individual agreement (e.g. an annex to the employment contract) or a policy adopted in accordance with the rules on social concertation. Subsequently, this instrument must be explicitly communicated to the employees, for example via intranet or e-mail.
The CLA on COVID-telework will expire on 31 December 2021, but can also expire earlier if telework is no longer an obligation or recommendation.
If your company has not yet put in place a regime on the subject of telework or if you would like to revise your current regime against the background of the CLA on COVID-telework, please do not hesitate to reach out to one of the experts of our employment team!