UP AGAIN BELGIUM

GETTING BACK TO BUSINESS AMID COVID-19

Restart8 June 2020

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RESTART: GETTING BACK TO BUSINESS AMID COVID-19

Table of contents1. BEFORE RESTARTING .........................................................................................................................................................................4

1.1. SOCIAL DISTANCING MEASURES ............................................................................................................................................4

1.1.1. What is meant by “social distancing”? .........................................................................................................................4

1.1.2. Some examples of specific social distancing measures .........................................................................................4

1.1.3. How can technology help to comply with the rules of social distancing? ..........................................................4

1.2. QUALIFICATION OF BUSINESS ACTIVITIES ............................................................................................................................5

1.3. THE STAKEHOLDERS ...................................................................................................................................................................5

1.3.1. Employees .........................................................................................................................................................................5

1.3.2. The employee representative .......................................................................................................................................6

1.3.2.1. The works council (WC)....................................................................................................................................6

1.3.2.2. The committee for prevention and protection at work (CPPW) .............................................................6

1.3.2.3. Trade union delegation ...................................................................................................................................6

1.3.3. The internal and external services for prevention and protection at work ........................................................7

1.3.4. The occupational doctor and the prevention advisor of the ISPPW and ESPPW ..............................................7

1.3.5. The social inspection.......................................................................................................................................................7

1.3.6. Third parties ......................................................................................................................................................................7

2. NECESSARY ADJUSTMENTS: IMPLEMENTING OUR “NEW DAILY LIFE” ....................................................................................8

2.1. CHANGING THE ORGANISATION OF WORK .........................................................................................................................8

2.1.1. Possibilities for temporary changes in work organisation .....................................................................................8

2.1.1.1. Performance of additional hours ..................................................................................................................8

2.1.1.2. Night work ..........................................................................................................................................................8

2.1.2. Possibilities for structural changes in the organisation of work ...........................................................................9

2.1.2.1. Telework ..............................................................................................................................................................9

2.1.2.2. Increasing the flexibility of working arrangements ..................................................................................9

2.1.2.3. Reduction of working time ...........................................................................................................................10

2.1.2.4. Updating shift work ........................................................................................................................................11

2.1.2.5. How to implement structural changes in work organisation? .............................................................11

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The purpose of this document is to set out the main points that every employer must take into consideration before resuming activities. This guide also deals with the adjustments that may prove necessary to bring about a return to normality, or even enable employers to set up a “new daily routine” within the company in the framework of contractual employment relations.

2.2. PERSONNEL MANAGEMENT ...................................................................................................................................................11

2.2.1. How can an employer reward its staff? .....................................................................................................................11

2.2.2. Can an employer use temporary employment? .....................................................................................................13

2.2.3. How to manage annual holidays ................................................................................................................................14

2.2.3.1. Can individual leave be cancelled?..............................................................................................................14

2.2.3.2. How to set up collective holidays? ..............................................................................................................15

2.2.4. What possibilities exist for temporary unemployment? .......................................................................................15

2.2.4.1. Temporary unemployment in normal circumstances ............................................................................15

2.2.4.2. Fast-track “coronaprocedure” .......................................................................................................................16

2.2.4.3. Temporary unemployment allowance........................................................................................................16

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1. Before restarting1.1. Social distancing measuresIn accordance with the instructions given by the government, the restart of activity can only be envisaged if social distancing measures are respected.

1.1.1. WHAT IS MEANT BY “SOCIAL DISTANCING”?“Social distancing” refers to a series of actions or measures designed to limit, control or even stop the spread of a contagious disease, the aim being to reduce contact between people infected with that disease and others.

The social partners (the “Group of Ten”) have drawn up a “Generic Guide to combat the spread of COVID-19 at work” containing a summary of best practices to be adopted in the context of social distancing.

This guide has been provided to the presidents of the joint committees, who can use it as a basis for sectoral agreements on social distancing measures. A number of sectors have already published sector-specific guides or protocols (for an overview, see: https://emploi.belgique.be/fr/themes/coronavirus/au-travail-en-toute-securite-pendant-la-crise-du-coronavirus-guide-generique).

This guide also serves as a reference for a gradual restart of the economy.

On this basis in particular, before resuming their activities, employers must ensure that they carry out a health and safety risk analysis and define appropriate safety measures to protect workers in the workplace.

To do this, employers can start from the existing risk analysis they have already carried out, while taking into account (i) the guide drawn up by the Group of Ten, (ii) the checklist published on the website of the FPS Employment, Labour and Social Dialogue (COVID-19 prevention checklist based on the Generic Guide https://emploi.belgique.be/fr/actualites/update-coronavirus-mesures-de-prevention-et-consequences-sur-le-plan-du-droit-du-travail), and (iii) the WHO recommendations.

1.1.2. SOME EXAMPLES OF SPECIFIC SOCIAL DISTANCING MEASURESAccording to the social partners, the following measures should be considered:

• keeping a certain distance (1.5 meters) and avoiding, to the fullest extent possible, situations where persons are at a short distance from each other. If it is necessary to be closer, the use of appropriate protective equipment is required;

• using virtual alternatives to meetings, training sessions and consultations (such as Skype, video conferencing systems, and so on);

• avoiding physical contact between employees by, for example:

• strict compliance with hygiene measures, particularly focused on maintaining physical hygiene of employees (washing hands, etc.) and proper cleaning of the workspace (disinfectants, avoiding sharing equipment where possible, etc.);

• ventilating work spaces and facilities, either by natural or mechanical ventilation;

• providing collective and individual protection tools. Collective protection tools (such as the application of floor markings or the installation of partition walls) have priority over individual protection tools (such as gloves, a full mouth mask) in situations where the 1.5 meters cannot be adhered to and after exhaustion of organisational and collective protection measures;

• restricting travel to absolutely essential travel, and when digital tools cannot serve as a workaround;

• informing and consulting employees to ensure that they are aware of the measures that apply and the actions they need to take themselves at work.

1.1.3. HOW CAN TECHNOLOGY HELP TO COMPLY WITH SOCIAL DISTANCING RULES?Employers could also decide to use new technologies to ensure that social distancing is respected. For example:

• Some companies have set up “indoor positioning” to ensure social distancing. “Indoor positioning” is a system for tracking movements of people in a warehouse. This system makes it possible to check the necessary distance between these persons;

• Other technologies exist in which employees are not located, but where each employee receives a specific pin which emits a signal as soon as a person approaches another pin and does not respect the 1.5 metre distance.

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When implementing a technology in the context of social distancing, it should be assessed whether it involves the processing of employees’ personal data within the meaning of the GDPR in particular.

This will not be the case, for example, when the technology is limited to using, for example, Bluetooth to check whether employees do not get too close to each other or in other situations where data is not collected. For example, in case of monitoring the temperature of employees, the Belgian Data Protection Authority (“DPA”) considers that such monitoring, in its current version, is not considered a form of processing of personal data and therefore does not fall within the scope of the DPA if no personal data is recorded or processed.

However, if personal data is processed, the employer will need a legal basis to justify the lawfulness of the processing. In the context of taking preventive health and safety measures to deal with COVID-19; the processing of personal data will in principle only be possible in application of one of the grounds for lawful processing set out in article 6.1 of the GDPR.

Furthermore, the processing of personal data concerning health is in principle prohibited, unless there are exceptions, such as explicit authorization by guidelines imposed by the competent authorities. In this respect, both the DPA and the Federal Public Health Services are of the opinion that the COVID-19 pandemic cannot be used as a reason to interpret the legal purpose of the processing set out in article 6.1, d) of the GDPR broadly, i.e. “necessary to safeguard the vital interests of the data subject or of another natural person” to validate the processing of such sensitive data.

In addition to the GDPR, employers will have to check whether other specific labour law requirements have to be complied with. In particular, the following comes to mind:

• the requirements foreseen by CBA nr. 81 on the protection of the employees’ privacy with regard to the control of electronic online communication data, if the technology implemented by the employer enables the latter to monitor the employees’ use of computer tools related to the use of this technology;

• the requirements provided for in CBA nr. 39 concerning information and consultation on the social consequences of the introduction of new technologies. This CBA nr. 39 applies

if the introduction of a technology has an impact on employment, work organisation or working conditions of at least 50% and at least 10 employees of a given occupational category (as defined at sectoral or company level).

1.2. Qualification of business activitiesTo cope with the current situation, the federal government has taken exceptional measures to be complied with by companies.

The applicable measures will vary depending on whether the activities of the company are considered “crucial”, “essential” or “non-essential”, in accordance with ministerial decrees.

The list of activities considered crucial, essential or non-essential has evolved and is likely to evolve further according to the ministerial decrees (which will be) issued during the different confinement phases. For an up-to-date list, please see https://www.info-coronavirus.be/fr/.

1.3. Stakeholders1.3.1. EMPLOYEESIn order to respect social distancing rules, employers (regardless of their activity) must take appropriate and clear measures.

It is essential for the employer to explain these measures in due time to the employees and to make sure the employees understand these measures and respect them.

For this purpose, it is requested to:

• provide a written document (by e-mail or through posting on the premises) explaining the measures it has taken (a manual aid);

• organize training for its employees, for example by using modern technologies (such as Skype, video conferencing and so on) to ensure that they are well informed about these measures, that they understand them and therefore adhere to them;

• check whether these measures are adhered to by staff and, depending on the circumstances, to take the necessary measures (such as a reminder, a disciplinary measure or, in case of serious and repeated violations, a dismissal measure).

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1.3.2. EMPLOYEE REPRESENTATIVE1.3.2.1. Works council (WC)

a) Information and consultation in the framework of COVID-19 measures

In the context of measures to be taken to cope with the COVID-19 outbreak, the WC must be informed (and sometimes consulted) in advance under numerous circumstances defined by law, in particular:

• when the employer resorts to temporary unemployment;

• if the return to business has consequences for the work organisation and for the employment conditions;

• if the return to business is combined with the implementation of new technologies within the meaning of CBA nr. 39 (written information to be provided in particular three months in advance);

• if the return to business is combined with measures regarding training and vocational rehabilitation of employees;

• if the return to business is combined with possible dismissal for economic reasons/restructuring. Specific attention must then also be paid to the laws applicable to collective dismissals and plant closures, as well as the possible collective bargaining agreements applicable to economic redundancies. In this case, a specific information and consultation procedure must be followed;

• if the return to business requires new processing of employee’s personal data.

The specific timing of the information (and sometimes also consultation) process is to be assessed on a case-by-case basis, and will also depend on the topic which the information (and sometimes also the consultation) is about.

b) Decision-making powers

Further, the WC’s approval will sometimes be required, in particular in the following situations:

• in case of dismissal and recruitment in order to determine the applicable criteria;

• if the return to business requires a modification of the work regulations (for example, in case of modification of the working schedules and working regimes);

• if the return to business leads to a decision with regard to setting annual collective holidays.

1.3.2.2. Committee for prevention and protection at work (CPPW)

The CPPW must be informed and consulted in advance on all matters concerning the well-being of employees at their workplace, as well as on the implementation of new technology within the meaning of CBA nr. 39.

The CPPW’s prior advice is thus, in principle, required prior to any deconfinement measure (including the appropriate prevention measures to be implemented within the company). This being said, no prior approval of the committee is required.

Moreover, for companies without a WC but having a CPPW, the CPPW takes over some of the missions which are in principle entrusted to the WC. If there is neither a WC, CPPW or trade union delegation, the employees themselves shall be consulted in relation to wellbeing at work in line with the procedure for direct participation set forth in the Code on wellbeing at work.

1.3.2.3. Trade union delegation

In case of a change which may affect the contractual or usual work conditions and the remuneration at collective level, the trade union delegation must be informed beforehand.

If the return to business requires the use of temporary agency workers, in addition to the obligation to consult, prior agreement of the trade union delegation is required (e.g. in the event of an exceptional increase of work).

In addition, if signing a collective bargaining agreement at company level is necessary to implement some of the measures required to resume the activity, this collective bargaining agreement will have to be negotiated with the trade union delegation (but the collective bargaining agreement will be signed by a mandated national or regional secretary of the trade unions, not by the trade union delegation).

Finally, for companies without a WC and without a CPPW, the trade union delegation takes over some of the tasks that are in principle entrusted to the WC or the CPPW.

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1.3.3. INTERNAL AND EXTERNAL SERVICES FOR PREVENTION AND PROTECTION AT WORKWithin a company, the employer is responsible for compliance with the policy on wellbeing. The employer must therefore ensure that appropriate measures are taken to guarantee the employees’ health and safety in the work place. To this end, the employer is assisted by the internal service for prevention and protection at work (“ISPPW”) and, where appropriate, the external services for prevention and protection at work (“ESPPW”) for drawing up a sound health and safety policy for the work place.

The missions of the prevention service as defined by the Code of wellbeing must be carried out by the ISPPW or by the ESPPW.

In the framework of the COVID-19 crisis, prior to the employees’ return to the workplace, the employer, assisted by the ISPPW (which can call upon the ESPPW) must:

• identify the new dangers linked to a change of employment conditions;

• advise on the results of the risk identification and determination and propose measures;

• advise on hygiene in the workplace;• advise on the development of instructions for

using (and cleaning) work equipment and on the use of personal protective equipment;

• organize first aid (in an appropriate manner);• carry out numerous systematic examinations

in the (adapted) workplace;• examine workstations, at the request of the employer

or the employees concerned, when they are exposed either to existing aggravated risks or to new risks.

1.3.4. THE OCCUPATIONAL DOCTOR AND THE PREVENTION ADVISOR OF THE ISPPW AND ESPPWA distinction is to be made between the prevention advisor who is a member of the ISPPW (who is linked by an employment contract with the employer) and the prevention advisor-occupational doctor of the ESPPW (who is linked by an employment contract to the ESPPW).

It is the prevention advisor-occupational doctor who carries out medical examinations of employees when necessary.

In this respect, medical examinations by the occupational doctor are mandatory only for positions subject to medical examination. These are

(1) safety jobs, i.e. positions involving, for example, the operation of motor vehicles, cranes, overhead cranes, etc., (2) vigilance jobs, i.e. positions consisting in continuously monitoring the operation of an installation where lack of attention could endanger the employee or other persons, and (3) activities with a defined risk.

As regards employees who are not subject to compulsory medical examinations, they may not be required (though may be asked) to undergo a medical examination. However, every employee has the right to request a consultation with the occupational doctor.

The same applies, in principle, to tests for the COVID-19 virus. These can only be carried out by the occupational doctor of the ISPPW or the ESPPW.

According to the FPS Employment, Labour, and Social Dialogue, ”the employer may inform the occupational doctor if he considers that the employee’s state of health increases the risks associated with the workplace or if the employee himself complains of discomfort or signs of infection, which may be attributed to his working conditions. The occupational doctor will then check whether a medical examination is necessary for that employee. The occupational doctor’s task is not to identify sick employees in order to give them sick leave or to send them to a doctor/hospital. The code of wellbeing at work leaves it to the occupational doctor to determine the medical examinations he carries out. In view of the risk of an infected employee infecting his co-workers, those may include testing for the COVID-19 virus if the occupational doctor has testing equipment available”.

1.3.5. SOCIAL INSPECTIONA checklist has been published on the website of the FPS Employment, Labour, and Social Dialogue (COVID-19 prevention checklist based on the Generic Guide) https://emploi.belgique.be/fr/actualites/update-coronavirus-mesures-de-prevention-et-consequences-sur-le-plan-du-droit-du-travail. In the event of a social inspection, the administration will apply this checklist.

1.3.6. THIRD PARTIESThe employer must also inform the third parties (suppliers, customers, etc.) in due time on the appropriate measures applicable in the company. As for the employees, it is recommended to provide them with a copy of the written documents explaining these measures (manual aid).

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2. Necessary adjustments: implementing our “new daily life”2.1. Changing the organisation of workThe COVID-19 crisis may lead some companies to implement temporary or structural changes in the organisation of work.

2.1.1. POSSIBILITIES WITH REGARD TO TEMPORARY CHANGES IN WORK ORGANISATION2.1.1.1. Performance of additional hours

Except in exceptional cases, provision of overtime is prohibited by law. These exceptions include force majeure and extraordinary increase of work.

Force majeure

In a relatively recent advice, the FPS Employment, Labour, and Social Dialogue indicated that the coronavirus and the measures taken in this respect can be considered, in certain cases (linked, in particular, to the health situation faced by the employer concerned), a situation of force majeure and more precisely necessary measures to deal with an accident that has occurred or that is imminent (article 26.1° of the Labour Law of 16 March 1971). This implies that the employer may invoke this exception to perform overtime for the organisation of work directly related to the coronavirus.

Of course, the possibility for an employer to invoke this exception has to be assessed on a case-by-case basis. It should in any event concern the organisational measures necessary to deal with the direct effects of the COVID-19 pandemic or to meet direct requirements resulting from it (e.g. the need to respect social distancing).

However, it is out of the question to systematically use overtime to cope with an influx of work.

Where overtime is performed for justified reasons of force majeure, no specific notification and no prior agreement is required (unlike overtime performed, for example, in case of an exceptional increase of work).

Exceptional increase of work

For certain companies the COVID-19 crisis could lead to an exceptional increase of work (e.g. companies producing plexiglass screens or mouth masks) due to increased product demand. The legislation provides the possibility to perform overtime in case of an exceptional increase of work (article 25 of the Labour Act of 16 March 1971). In order to invoke this reason, the increase shall be exceptional and thus not occur regularly and unforeseeable (these conditions shall be met in the framework of COVID-19). Prior approval of the trade union delegation and approval of the social inspection is required.

2.1.1.2. Night work

Night work (i.e. all work performed between 20:00 and 6:00) is in principle prohibited, save for the exceptions provided for by law.

As with the performance of overtime, according to the FPS Employment, Labour, and Social Dialogue, it can be regarded, in certain cases, as a situation of force majeure and, more specifically, as necessary measures to deal with an accident that has occurred or is imminent (article 26.1° of the Labour Act of 16 March 1971).

The employer may therefore invoke this exception to organize work after 20:00 for the organisation of work directly linked to the coronavirus crisis. However, the same observations as those made on the topic relating to overtime still apply: a case-by-case assessment must be made.

However, as the employee’s working hours are an essential condition of the employment contract, it is recommended to obtain the employee’s express approval before the introduction of night work and, if necessary, to add an addendum to the employment contract incorporating the new working hours.

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In any event, night work may also be carried out if one of the reasons provided for in the Labour Act can be invoked (e.g. carrying out work on inventories and balance sheets with a maximum of seven nights per employee per calendar year, carrying out transport, loading and unloading operations, etc.).

2.1.2. POSSIBILITIES WITH REGARD TO STRUCTURAL CHANGES IN THE ORGANISATION OF WORKEmployers may thus have to modify the organisation of work in order to comply with the social distancing rules. In addition, it can be expected that the use of telework, where possible, will continue to be encouraged by the authorities for some time, especially if the employer is not able to adhere to social distancing measures in the workplace.

2.1.2.1. Telework

In the current state of affairs, as was already the case for “essential companies” and “crucial sectors”, telework is recommended but is no longer compulsory for companies considered “non-essential”. Of course, it should be used if compliance with social distancing measures cannot be ensured within a company, provided, of course, that the position is suitable. Continued use of telework using a rotation system between employees can also be part of the solutions to be put in place in order to respect social distancing measures.

The use of telework can be structural or occasional.

Structural telework is defined as telework performed on certain days of the week or days of the month and occasional work in cases of force majeure (when the employee is unable to perform his or her tasks at the usual workplace due to unforeseen circumstances beyond his or her control, such as unexpected industrial action, exceptional traffic congestion or unforeseen personal reasons).

In case of structural telework, an addendum to the employment contract specifically concerning telework (or a specific employment contract for telework as a whole) must be concluded with the employee in order to set out the arrangements for implementing telework (and in particular concerning (1) whether or not the employer provides the necessary equipment, its installation and maintenance, and (2) payment of the costs of connection and communications linked to telework). It is essential to have a clear policy in place in this respect.

In case of occasional telework, the law leaves employers some leeway to define the situation in which occasional telework may be performed and the terms and conditions under which it may be carried out.

In terms of equipment and costs, in accordance with the Act of 3 July 1978 on employment contracts, the employer has a general obligation to provide the employee with appropriate work tools and equipment enabling him to carry out his/her position properly (e.g. a laptop with VPN connection). However, in case of occasional telework, the rules on occasional telework do not formally require the employer to make specific equipment available to the employee, nor to reimburse the professional expenses incurred as a result of the performance of the occasional telework. However, in circumstances where telework is imposed by the employer (e.g. because of COVID-19) and where no such professional equipment is available to the employee, the employer is in some way obliged either to make the professional equipment necessary for the performance of the telework available to its employee or to reimburse the professional expenses incurred if the employee uses his/her own equipment to telework.

Thus, even in case of occasional telework, a policy may be needed to regulate telework arrangements, to define the circumstances in which an employee may telework occasionally, and to set up the procedure that the employee must follow in order to use this type of telework.

With regard to the implementation of:

• Structural telework: unlike occasional telework, the employer must first consult the employee’s representatives. Furthermore, structural telework cannot be used for workers employed as sales representatives.

• Occasional telework: occasional telework must be provided for in the company's work regulations or in a collective labour agreement.

2.1.2.2. Increasing working arrangements flexibility

In order to avoid having too many employees at the company’s premises at the same time, starting and finishing their work day at the same time, and thus to be able to respect social distancing rules, consideration could be given to arranging their working hours and using more flexible working arrangements.

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In this context, and subject to compliance with the legal provisions in force, the following working arrangements could be of interest:

• flexible working hours, as provided for in article 20 bis of the Labour Act of 16 March 1971;

• floating working hours, as provided for in article 20 ter of the Labour Act of 16 March 1971;

• new working arrangements as provided for in the Act of 17 March 1987 on the introduction of new working arrangements in companies (which allows for derogations from the prohibition on Sunday work, the prohibition on night work, the prohibition on work on public holidays and the limits on working hours).

2.1.2.3. Reduction of working time

Reducing working hours may also be an option to manage the COVID-19 crisis when the workload is not sufficient to occupy all or part of the staff on a full-time basis and if a part-time occupation is sufficient.

The issue of working time reduction can be approached from the following perspectives:

Is the employer authorized to impose a reduction of working time for all or part of the staff and to impose a reduction in remuneration accordingly?

This will, of course, depend on the extent of the change imposed.

As a matter of fact, if the change in working conditions is significant and unilateral, there is a risk that it would be considered a breach of contract by the employer. If the employees concerned individually agree to a reduction of their working time and remuneration, the question of a possible breach of contract will not arise. If this is not the case, however, in order to reduce this risk, a solution could be (if possible) to negotiate and sign a collective agreement at company level providing for a reduction of the employees’ working time and remuneration for a fixed period of time.

Moreover, if this reduction concerns only part of the employees in the undertaking or in a department, particular attention will have to be paid to a possible problem of discrimination if this reduction is imposed unilaterally by the employer.

What about the introduction of a collective reduction in weekly working time and the introduction of a four day working week?

Under specific conditions, employers could benefit from a reduction in social security contributions in the event of a collective reduction in weekly working time and the introduction of a four day working week.

The four day working week can be introduced either by collective labour agreement (concluded at the level of the joint committee or at company level) or by work regulations. The terms and conditions of this reduction are to be agreed upon. The amount of the reduction in social security contributions is different depending on whether the four day working week is introduced with or without a reduction in working time.

Can employers encourage their employees to take up parental leave or time credit?

Employers could consider encouraging employees to take up parental leave, time credit, etc. as a means of encouraging them to take time off work.

Using such working time reduction schemes is indeed possible when the legal conditions for taking parental leave, time credit, etc. are met. The employee must, however, be willing to take such leave.

What about “corona” parental leave?

The Royal Decree n°23 of 12 May 2020 (taken in execution of article 5, § 1, 5°, of the law of 27 March 2020 granting powers to the King to take measures in the fight against the spread of the COVID-19 (II) concerning corona parental leave) set up a parental leave specifically for the coronavirus crisis (“corona parental leave”).

From 1 May 2020 to 30 June 2020 (although on 6 June the Council of Ministers announced an extension of this measure until 31 August), parents who have been employed for at least one month can take corona parental leave up to 1/5th or half-time if they have at least one dependent child under 12 years of age (or 21 years of age if the child is disabled but some derogations are provided for concerning the age of 21). Part-time employees whose working time is at least three-quarters of a full-time job may also benefit from corona parental leave up to half of a full-time job.

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The employer’s approval is required and the parental leave is paid by the national employment agency (“RVA”, “ONEM”) (the amount being 25% higher than the allowance granted for “ordinary” parental leave). The application procedure is shorter than for ordinary parental leave. The leave may be taken in a continuous period until the end date of the measure, or in several successive months or weeks. Employees who currently benefit from ordinary parental leave may also convert their current leave into corona parental leave (e.g. ½ ordinary time into ½ corona time) or temporarily suspend their ordinary parental leave and apply for corona parental leave (e.g. full-time ordinary leave into ½ corona leave).

Employees who have applied for corona parental leave benefit from the same protection against dismissal as that applicable to "ordinary" parental leave. They can only be dismissed in the event of serious grounds or legitimate reasons. The period of protection starts from the moment the employee notifies the employer (subject to required formality) of his/her wish to take corona parental leave and ends three months after the end of the corona parental leave. The amount of the protection allowance is six months’ pay.

2.1.2.4. Updating shift work

Updating shift work might be a solution to ensure that social distancing measures are well adhered to if the organisation within the undertaking is such that, in order to comply with social distancing measures, the number of employees per team carrying out team shift work must be decreased, or that the number of shifts must be increased.

For working regimes including night work (in particular for work usually performed between 24 hours and 5 hours), the rules provided by the Act of 16 March 1971, by CBA nr. 46, by CBA nr. 49 and by the Royal Decree of 16 April 1998 must be respected.

2.1.2.5. How to implement structural changes in the work organisation?

Attention should be paid to the following:

Information and consultation requirements

The Works council shall be informed and consulted prior to any change concerning the work organisation and the employment conditions (see 1.3.2.1).

Moreover, as the trade union delegation must be informed in case of change which could affect the contractual or usual work conditions, the trade union delegation shall also be informed beforehand (see point 1.3.2.3).

Amending work regulations

In case of structural change in work organisation entailing new work schedules and new work regimes, the work regulations must also be modified accordingly. This modification must be made in compliance with the legal procedure for amending the work regulations.

However, modification of the work regulations will not be necessary in the event of a temporary change to the provisions of the regulations concerning the beginning and end of the regular working day. Furthermore, when new work arrangements are introduced, these arrangements will automatically become part of the work regulations without the need to follow the legal procedure for amending the work regulations.

Signing a CBA

Depending on the planned changes in work organisation, signing a collective bargaining agreement with the trade union delegation might be required. This will in particular be the case for companies with a trade union delegation, in case of change of a working regime including night work (i.e. work usually performed between 24:00 and 5:00).

Approval by the employees concerned

Depending on the importance of the planned changes and except in case where these changes are implemented via a valid collective bargaining agreement, prior approval of the employees concerned is in most cases needed to avoid any possible risk of breach of contract by the employer. This will also depend on the wording of the employment contract and on the existence of any flexibility clauses signed between parties.

2.2. Personnel management2.2.1. HOW CAN AN EMPLOYER REWARD ITS STAFF?Some companies are keen to reward employees or certain categories of employees who they have been able to rely on during the crisis or to provide incentives to continue to rely on their goodwill. To this end, companies could consider the following measures, amongst others:

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Payment of cash bonuses: Payment of a cash bonus is the easiest incentive that an employer can give to its employees. However, it is also the costliest measure since such a bonus will be considered remuneration and taxed as such. It will, moreover, be subject to vacation pay and will be included in the basis for the calculation of the indemnity in lieu of notice of the employee in the event of dismissal, and, probably, the basis of calculating the guaranteed salary in the event of illness. It should also be ensured that employees cannot claim a vested right.

Profit participation premium: An employer may allow its employees to share in the company’s profits, after tax, made in a specific tax year, by granting “profit-sharing bonuses”. Such bonuses may also be granted at the level of the group of companies.

This type of premium is interesting from an administrative and financial point of view, for the following reasons:

• It stimulates participation of employees in the company’s activities while respecting all health and safety rules;

• It can be cumulated with CBA nr. 90 concerning non-recurring result-oriented bonus schemes;

• It is not subject to the employer’s social security contributions (though still subject to the employee’s social security contributions of 13.07%) and is subject to a 7% tax;

• It does not require any prior commitment, which means that the decision to grant the bonuses can be taken after the closure of the financial year concerned;

• It does not give employees any possibility of claiming a vested right and there are no derived rights for employees;

• It is excluded from the restrictions on wage moderation.

There are, however, some restrictions on granting such a premium.

Cash payment into a pension plan. A bonus pension scheme (“BPP”) is a type of supplementary pension plan financed by employer premiums, the payment of which depends on the achievement of objectives previously set by the employer. BPPs consist mainly of objectives to be achieved over a financial year. Once the objectives have been achieved, the employer pays the premiums

into the plan in the subsequent fiscal year. BPPs are set up and governed in the same way as “ordinary” supplementary pension schemes in Belgium.

The implementation of a BPP could be attractive because of its advantageous tax and social security treatment compared to ordinary cash bonuses. When the BPP is set up and financed in accordance with the law, the premiums paid by the employer and the payments to members resulting from the BPP are subject to a favourable social security and tax regime. In addition, unlike cash bonuses, no vacation pay will be due on the bonuses.

Stock options. Belgian law provides for a specific legal framework regarding the tax and social security treatment of stock options, including warrants, granted to employees in connection with their work.

If certain legally defined conditions are met, stock incentives could be subject to lower tax rates, taxable as ordinary professional income at the time of the grant. From a social security perspective, contributions could then only be imposed on the positive difference between the strike price and the actual value of the shares at the moment of the grant. In the absence of such a positive difference, no social security contributions would be due.

Granting stock options could be interesting as an incentive to the employees during these difficult times for the following reasons:

• Low stock prices in the current market would limit investment costs for the employer;

• Warrants might be interesting to optimize bonus budget: the same gross amount would result in a higher net amount for the employees. Further, if legal conditions are met, no vacation pay would be due on the warrants paid to the employees;

• Granting longer term stock options to employees would be useful for retention of key employees.

Collective non-recurrent result-oriented bonus schemes. Non-recurrent result-oriented benefits (or non-recurring bonuses) are defined in collective bargaining agreement nr. 90 (CBA nr. 90) as benefits linked to the collective performance of a company or group of companies, or of a well-defined group of employees (e.g. employees working in a specific and distinct department), on the basis of objective criteria.

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The basic principles are as follows:

• The granting of a bonus under a CBA nr. 90 plan must be conditional on the achievement of collective objectives, which must be clearly defined, transparent, measurable and quantifiable;

• The achievement of these collective objectives must also be uncertain at the date of implementation of the plan;

• This benefit cannot replace part of the employee’s remuneration or benefits he/she already receives, with certain exceptions;

• The plan may be concluded for an indefinite or fixed term and must indicate a reference period of at least three months, during which the collective objectives must be achieved;

• A specific implementation procedure must be followed.

Why is a bonus plan interesting?

• Such a plan can stimulate employee participation in the company’s activities. Furthermore, it can be combined with profit-sharing bonuses which could be linked to the same payment targets, thus increasing the total amount of incentive payable to employees;

• Payments made under such a plan are subject to an attractive social security and tax regime;

• Payments are excluded from wage moderation restrictions;

• Employees have no vested rights and there are no derived rights for employees.

The Council of Ministers, in its press release of 6 June 2020, announced the introduction of a EUR 300 consumption cheque aimed at sectors mainly affected by the crisis. This cheque may be granted by an employer to members of his staff for the purchase of goods and services in sectors affected by the crisis (such as the hotel and catering industry, culture, etc.). This cheque will not be subject to social security contributions or taxation. It will also be tax deductible for the employer.

2.2.2. CAN AN EMPLOYER USE TEMPORARY EMPLOYMENT?To deal with the COVID-19 pandemic, the federal government has taken exceptional and temporary measures, allowing companies in critical sectors, i.e. those in “critical sectors” and “essential services”,

some flexibility in terms of temporary employment. For other businesses, the usual rules continue to apply.

These exceptional and temporary measures are the following:

Successive fixed-term contracts: the possibility of concluding successive fixed-term contracts is strictly regulated. In the event of non-compliance with the rules, the fixed-term contract is deemed to have been concluded for an indefinite period.

From 1 April through 30 June 2020, employers in critical sectors may, without limits, conclude successive fixed-term contracts for a period of at least seven days, without the risk of these contracts being converted into an employment contract of indefinite duration.

After 30 June 2020, the usual rules on successive fixed-term contracts will apply again.

Labour leasing: “labour leasing” is the situation in which an employer “lends” its employees to a third party and that third party exercises all or part of the employer’s authority over them. Labour leasing is prohibited, except in certain circumstances provided for by law.

In order to ensure that critical sectors have the necessary manpower, a temporary derogation from the prohibition on labour leasing has been introduced. Thus, from 1 April through 30 June 2020, any employer (including employers in non-critical sectors) may temporarily “lease” its employees to employers in critical sectors. No agreement from the trade union delegation or notification to the social inspection is required.

In order to do so, the following conditions in particular must be met:

• The “leasing” must occur in view of coping with the effects of the COVID-19 pandemic;

• The leased employees were already in service before 10 April 2020;

• Before the start of the labour leasing, the terms and duration of the labour leasing must be formalized in a written tripartite agreement, concluded between the employer, the third-party used and the leased employee. The employee’s written approval is, however, not required if the employee’s tacit approval of the leasing is customary in the concerned sector of industry;

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• The third-party user is jointly liable for the payment of social security contributions, salary, compensation or other benefits resulting from the activities of the concerned employee during the leasing period;

• The salary of the leased employee may not be lower than the salary applicable to an employee occupying a similar position at the user.

Student work: provided certain conditions are met, the hours worked by students are not subject to payment of regular social security contributions. These conditions include a maximum limit of 475 hours to be worked per year. This limit is also important with regard to family allowance entitlements.

In the context of the COVID-19 crisis, many companies have had to call on the work of students. Exceptionally, the hours worked by students during the second quarter of 2020 will not be taken into account for the calculation of this maximum limit. This exceptional measure applies to all employers, regardless of their essential or non-essential activities or the sector of activity to which they belong.

Finally, with regard to temporary employment, it should also be pointed out that, despite the temporary derogations mentioned above, the legislation applicable to temporary work continues to apply. In order to cope with the COVID-19 pandemic, companies have resorted to temporary work and will certainly still have to do so. However, no specific measures have been taken in this respect. The usual provisions therefore apply. Therefore, in order to be able to employ temporary agency workers, the company must be in one of the situations listed by law where the use of this type of work is permitted (in particular in the event of replacement of a permanent employee – including to replace a temporarily unemployed employee, in the event of a temporary increase in work, in case of exceptional work). Moreover, the duration of a temporary employee’s assignment is limited by law and varies according to the reason for using temporary work. Moreover, depending on the reason, prior approval of the trade union delegation may be required (in particular in case of a temporary increase of work) as well as compliance with other specific formalities.

2.2.3. HOW TO MANAGE ANNUAL HOLIDAYSAs business picks up again, holiday management may prove problematic in some companies. In addition, some may wish to make use of collective holidays. What are the rules?

2.2.3.1. Can individual leave be cancelled?

There are generally four types of leave in Belgium:

• statutory leave (20 paid days for a full-time employee working 5 days a week, and who would have worked full-time during the preceding year);

• sectoral leave, the terms and conditions of which and the number of days per year of which are determined in a collective bargaining agreement concluded at sectoral level;

• compensatory rest, granted to employees who are subject to the laws on overtime, and who would have performed work on top of the working time limits;

• non-statutory leave, which is granted on a voluntary basis by the employer without any legal requirement thereto, the terms and conditions of which can in fact be determined in agreement between the employer and the employee.

The basic principle is the following: the dates of leave are in principle decided by mutual agreement between the employer and the employee. Thus, an employer cannot force its employees to take leave on specific dates, on pain of risking constructive dismissal. Nor can an employee decide to unilaterally cancel his/her leave previously approved by the employer.

Attention should also be paid to the following:

• This may not be the case for non-statutory leave if other rules have been specifically provided for in the policy (or other written document) relating to it (e.g. providing, for example, the possibility for the employer to unilaterally cancel days of non-statutory leave in certain circumstances);

• There is also an exception for temporary unemployment for economic reasons (though not in case of unemployment due to force majeure). In this situation, the employer may ask its employees to first take all their remaining paid compensatory leave before enrolling the employees in this temporary unemployment scheme;

• However, the employer must bear in mind that if an employee falls ill before the scheduled day off, the leave is cancelled and the employee is on sick leave. The day off must then be taken at a later date.

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2.2.3.2. How to set up collective holidays?

Collective holiday periods (during which employees take holidays simultaneously during the same period, for example, as part of an annual closure of the company) can be provided for at joint committee level. However, this is exceptional. It is more common for holidays to be set at company level, either by decision of the works council or by agreement between the employer and the trade union delegation. These decisions must be taken by 31 December of the year preceding the year in which the collective holidays will take place. If such a decision has been taken, the consent of the individual employee for the days of collective holiday is not required, so that an employee cannot unilaterally change the collective holiday periods.

A law proposal was submitted to the House of Representatives on 27 May 2020. This proposal intends to allow:

• employers, if necessary in the context of the resumption of their activities, to deviate from the collective holidays periods provided for at sectoral level, subject to prior social consultation at company level;

• a postponement to 2021 of the additional days of leave granted by the sector for the year 2020;

• employers not to grant two consecutive weeks of leave to their employees between 1 May and 30 October, contrary to the legislation.

Finally, and following the example of the measures taken during the attacks in 2016, the law proposal intends to assimilate days of temporary unemployment due to force majeure to working days for the calculation of holiday pay and the number of days of holiday.

This last measure was adopted by the Royal Decree of 4 June 2020. Thus, the days of work interruption resulting from temporary unemployment due to force majeure following the pandemic caused by the corona virus are assimilated to actual working days, for the period from 1 February 2020 up to and including 30 June 2020. This applies both to the calculation of the amount of holiday pay and to the calculation of the duration of holidays. This will of course have a cost for companies.

2.2.4. WHAT POSSIBILITIES EXIST FOR TEMPORARY UNEMPLOYMENT?Under “normal” circumstances, there are two types of temporary unemployment that employers could use to deal with the COVID-19 crisis: temporary unemployment due to “force majeure” and temporary unemployment for “economic reasons”. However, faced with too great an influx of applications in the context of the pandemic, the federal government temporarily created a fast-track procedure known as the “corona procedure”.

2.2.4.1. Temporary unemployment in normal circumstances

Apart from the current crisis situation, temporary unemployment due to force majeure requires the following conditions to be met:

• The force majeure must be a sudden and unforeseeable event;

• The facts must occur outside the will of the parties;

• The continued performance of the employment contract must be rendered completely impossible by force majeure,

• The impossibility to work must be of a temporary nature.

Temporary unemployment for economic reasons may be implemented in the following cases:

• For employees: (1) the employer can prove a substantial decrease of at least 10% in its sales, orders or production in one of the four quarters preceding the quarter in which the application is filed, compared with the same quarter in 2008 or the same quarter in 2019 or 2018. (2) Either the company is faced with a number of days of economic unemployment for its employees of at least 10% of the total number of days declared to the NOSS for blue- and white-collar employees during the quarter preceding the notification made to the NOSS as a company in difficulty. (3) Or, the employer cannot provide the abovementioned proof and must therefore submit an application for recognition as a “company in difficulty” to the Minister of Employment on the basis of unforeseeable circumstances.

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Furthermore, and in any event, the possibility of resorting to temporary unemployment for economic reasons must be provided for in a sectoral CBA, a company CBA or a company plan approved by the Director General of Collective Labour relations of the Federal Public Service Employment, Labour, and Social Dialogue.

Taking into account the length and complexity of the application procedure, employers who would like to apply for temporary unemployment on economic grounds should take this time aspect into account.

• For blue-collar employees: the employer only needs to be able to prove, by all possible means, to the national employment agency (“RVA”, “ONEM”) that there are economic reasons why a normal working regime cannot be maintained.

Special procedures have to be followed in order to apply for temporary unemployment.

2.2.4.2. Fast-track “corona procedure”

Within the framework of this temporary procedure, all situations where work cannot be carried out due to the COVID-19 epidemic, regardless of the employee category (blue- or white-collar), are automatically recognized, after notification to the national employment agency (“RVA”, “ONEM”), as temporary unemployment due to force majeure, without the need to submit a supporting dossier.

The Council of Ministers announced, on 6 June 2020, an extension of the corona procedure until 31 August 2020 inclusive, which was initially scheduled to run until 30 June 2020. Thereafter, employers will still be able to resort to temporary unemployment by following the “normal” procedures.

2.2.4.3. Temporary unemployment allowance

As a general rule, for both temporary unemployment schemes, the amount of the allowance employees receive from the national employment agency (“RVA”, “ONEM”) is equal to 65% of the capped average employee’s remuneration (capped at 2.754,76 EUR per month in 2020). However, in view of the circumstances relating to COVID-19, the national employment agency (“RVA”, “ONEM”), also pays an additional compensation of 5,63 EUR per day of unemployment.

A 26,75% withholding tax is deducted from the total unemployment benefit amount.

Finally, with regard to temporary unemployment for economic reasons, the employer is – as a general rule but not in the “corona procedure” – obliged to pay its employees a supplement to the unemployment benefit. This supplement cannot be less than what the employer’s blue-collar employees receive in case of temporary unemployment in accordance with the sectoral provisions applicable to them (or would receive if there were no blue-collar employees in the company). In the absence of sectoral provisions applicable to the blue-collar employees, the allowance must amount to a minimum of 5 EUR for each day not worked (unless a derogation is granted by a specific committee, though such derogation is rarely granted).

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https://www.dlapiper.com/en/belgium/insights/topics/coronavirus-belgium/

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