Home-telework is compulsory again in Belgium for all companies and for all staff members as from today, 2 November 2020, unless such telework is impossible due to the nature of the function or for reasons related to business continuity. Only companies and their employees who are working in specifically by MB listed ‘essential sectors and businesses’ are exempt from the obligation to organize their work through home-telework. In other sectors and businesses, it will be up to the employer to determine whether the nature of an employee’s function or business continuity would make it impossible to home-telework. Even if the employer is best placed to decide on its own organizational necessities, employers should however not make this decision too lightly as the legislation requires home-telework to be “impossible”. Employees who do not agree with the decision of their employer to require their presence in the office may file a complaint with social inspection services. As the legislation still does not determine the modalities of home-teleworking it is advisable for companies, which have not done it yet, to determine the regulations in respect of teleworking in a policy or addendum to the contract. If home-teleworking cannot be applied, appropriate sanitary measures (masks/ventilation of premises, …) must be taken and maximum compliance with the principles set out in the (updated) ‘Generic guide to prevent the spread of COVID-19 at work’
Mandatory attestation for office workersA new and important additional obligation also applies: employers must as from 2 November provide staff members who cannot home-telework (due to the nature of their function or for business continuity reasons) with a certificate or other evidence that confirms the need for their presence at the workplace. As non-essential travel is permitted under the COVID-19 measures that currently apply, it is clear that this new obligation focusses on justification of the employee's presence on the work floor, probably with a view of facilitating a social inspection. Increased inspections have been announced. This requirement to dispose of appropriate certification does not apply to employees working in the specifically listed ‘essential sectors or businesses’, as those are also exempt from the general obligation of telework. No specific template is currently provided for such attestation but we have a draft at your disposal which we will send you after sending a mail to: BrusselsEmploymentAll@fieldfisher.com. All these obligations currently apply until 13 December 2020.
HR Management Tip:
inform your employees about the obligation to telework from home and provide for a policy detailing some rules of home-teleworking. Only allow employees to come to the office if telework is impossible, keep track of who comes in, and provide adequate certification to justify their presence.
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