CMS Expert Guide to mobile working

Yes. Since 2017, work from home is regulated by the Labour Code (Articles 1222-9 et seq.).  

Furthermore, we also refer to case law and to a national muti-industry agreement from 2005 (i.e. ANI) to resolve practical questions. The collective bargaining agreement applicable to the industry sector of the company may also provide for specific provisions. 

Yes.

In Belgium, a distinction is commonly drawn between three forms of remote work. These three forms of remote work are governed by the following legislation:

• work from home, governed by the law of 3 July 1978 on employment contracts;
• structural telework, governed by the Collective Bargaining Agreement nr. 85 of 9 November 2005 on telework (“CBA 85”);
• occasional telework, governed by the law of 5 March 2017 on feasible and workable work (“law of 5 March 2017”).

The difference between “work from home” and “telework” is the use of "information technology" (e.g. a computer) as part of teleworking, whereas this use is not required for working from home.

The difference between “structural” and “occasional telework” is that structural telework is performed on a regular basis whereas occasional telework is performed on an occasional basis. Under certain conditions, the use of occasional telework may be allowed in two cases: (1) in cases of force majeure (e.g. unplanned public transport strikes, etc.). The COVID-19 pandemic can, in our opinion, be considered a case of force majeure; or (2) for an employee's personal reasons that prevent him from carrying out his work at the employer's company premises. In this two cases, the employee’s function or activity must be suitable for occasional teleworking.

In this Guide, we will focus on structural and occasional telework, which are the most commonly implemented forms of remote working.

Work from home is flexible. It can be implemented by a company-level agreement concluded with trade unions or by a policy unilaterally issued by the employers and subject to the opinion of the works council (if any). 

In the absence of a company agreement or policy, it is also possible to conclude an individual agreement with the concerned employee. 

In any case, it is highly recommended to set terms and conditions in writing to clearly define the parties' obligations.

• In respect to structural telework: CBA 85 provides that a written agreement – or a written addendum to the employment contract (if an employment contract has already been concluded) – must be drawn up for each teleworker individually. CBA 85 does not require the drafting or conclusion of other documents (e.g. CBA, internal policy, annex to the work rules). However, nothing prevents the employer from creating these types of documents.
• In respect to occasional telework: an agreement must be reached between the employer and the employee on certain points relating to occasional telework. The law of 5 March 2017 does not provide that this agreement be established in writing. Hence, it could be verbal. In addition, the law of 5 March 2017 provides that the employer can establish a general framework within which the employees may request occasional telework. If the employer decides to establish such a general framework, this framework must necessarily be laid down in a CBA or the work rules. In this case, the CBA or the work rules should contain specific mandatory provisions.

In principle, work from home must be done on a voluntary basis. Therefore, the employer cannot terminate the employment contract if the employee refuses to work from home. 

However, in case of exceptional circumstances, such as a pandemic, work from home can be imposed as a necessary measure for the continuity of business and the protection of employees' health and safety (Article L. 1222-11 of the Labour Code). 

In principle, the employer cannot force an employee to perform (structural or occasional) telework.

Due to the COVID-19 pandemic, Belgian authorities have nevertheless decided that in specific circumstances telework is compulsory, unless teleworking is impossible due to the nature of the work function, the continuity of the management of the company, or the company's activities and services.

In this context, the employer can force employees to telework on an occasional basis.

No, the employer must accept the request of the employee to work from home.

However, WFH has become a right since 2017. As a result, when an employee asks to work from home, the employer's refusal must be justified by objective grounds (Article L. 1222-9 of the Labour Code): technical impossibility, disorganisation of business, etc. 

In principle, an employee cannot force the employer to allow him to perform (structural or occasional) telework.

Given the current situation, however, any employer must comply with the measures of Belgian authorities (e.g. compulsory telework) and allow their employees to telework unless this is impossible due to the nature of the work function, the continuity of the management of the company, or the company's activities and services. Otherwise, the employer risks criminal penalties.

Work equipment might be the property of the employee or be made available by the company. 

However, when work from home is imposed by the employer, he must provide the employee with the necessary tools.

• In respect to structural telework: CBA 85 provides that an employer is required to provide the teleworker with the equipment necessary for teleworking, and to install and maintain it. In addition, the employer shall bear exclusively the costs of connections and communications related to telework. If the teleworker uses personal equipment, the employer must reimburse the teleworker for these costs (see below).
• In respect to occasional telework: the employer and the employee must agree on the possible supply of teleworking equipment. The parties could, for example, agree that the employer will not supply any equipment related to telework.

In its Q/A issued during Covid-19 lockdown, the Government provided that:

1. The employer is only responsible for the costs incurred by the employee while he works from home if the company agreement or the policy provides for this obligation. 
2. The employee's usual catering rights are maintained (e.g. the lunch meal).

However, in our opinion, this position might  be challenged in light of the fact that according to the 2005 national agreement and case law the employer must reimburse the employee with any and all  expenses incurred during WFH (Supreme Court, 25 February 1998, n°95-44.096).

In any case, the expenses can be reimbursed as a lump-sum to the employee, within a limit of €.10 per month for an employee working from home once a week. 

• In respect to structural telework: If the teleworker bears the expenses related to the equipment necessary for teleworking and the expenses related to connections and communications, the employer must reimburse these costs. The latter can reimburse these expenses on the basis of actual costs or on a lump-sum basis. The National Social Security Office accepts a lump-sum reimbursement for certain costs (e.g. PCs, internet connection, etc.). These lump-sum reimbursements are, under certain limits and conditions, exempt from social security contributions and taxes.
• In respect to occasional telework: the employer and the employee must agree on the possible reimbursement of expenses related to telework. The parties could, for example, agree that the employer will not reimburse any expenses.

Case law considers that the employee must benefit from an "occupancy allowance" when the company does not have premises where the employee can work and therefore the employee is de facto obliged to work from home (Supreme Court, 8 November 2017, n°12-19.667). 

This WFH allowance should be limited to this specific situation. When WFH is optional and voluntary (as it is in most cases), this extra indemnity is not due. (Only reimbursement of expenses are due).

• In respect to structural telework: apart from the costs referred to above (point 6), CBA 85 does not require the employer to cover any other costs related to telework and more specifically those related to the use of part of the home as a place of work (e.g. heating, electricity, etc.). However, nothing prevents the employer from reimbursing these expenses.
• In respect to occasional telework: as outlined above, the employer and the employee must agree on the possible reimbursement of expenses related to telework. The parties could, for example, agree that the employer will cover the costs related to telework and more specifically those related to the use of part of the home as a place of work (e.g. heating, electricity, etc.).

The employer is also subject to a duty of care regarding the employee's  health and safety while working from home. 

In this context, the employer must ensure that the employee's home workspace and equipment are appropriate to safely perform all duties. 

Furthermore, the employer must prevent employee isolation, control workloads and ensure a balance between the worker's private and professional lives (Articles 6 and 9 of the 2005 ANI). 

To do so, the Labour Code notably provides for the obligations (i) to meet at least once a year to discuss the workload and working conditions and (ii) to set down the times of day when the employee can be contacted (Article L. 1222-10). 

• In respect to structural telework: CBA 85 provides that the employer shall inform the teleworker of the company's policy on health and safety at work, in particular the requirements for visual display screens. The teleworker must apply these safety policies.
  
  In addition, competent internal prevention services may inspect the telework place in order to verify the proper application of health and safety regulations. This inspection is subject to the agreement and prior notification of the concerned teleworker, if the telework is carried out in an inhabited space.
  
  Finally, the teleworker may also request an inspection visit from these same services.
   
• In respect to occasional telework: the law of 5 March 2017 as such does not foresee any rules (i.e. information, inspection, etc.) relating to health and safety during occasional telework. However, we advise that the teleworker be informed of the company's policy on health and safety at work, in particular the requirements for visual display screens.

The employee working from home has the same rights as an employee working in the company's premises, notably in terms of collective rights.

In regard to structural telework, CBA 85 provides that the employer shall ensure that measures are taken to prevent isolation of the teleworker from other employees of the company, such as the opportunity to meet regularly with colleagues and have access to company information. To this end, the employer may from time to time recall the teleworker to the company.

Yes, the employee must be covered by insurance for his professional activity, as well as for the material and equipment made available by the company.

There is no specific insurance related to (structural or occasional) telework. 'Classic' insurances continue to apply during teleworking.

Yes, the employee benefits from the specific regulation applicable to work-related accidents and illnesses (Article L. 1222-9 of the Labour) if an accident occur while working from home.

Under Belgian law, a teleworker remains covered by 'classic' compulsory industrial accident insurance taken out by the employer.

However, the following particularities remain relating to insurance coverage during teleworking:

As a rule, accidents covered by industrial accident insurance include those that occur (1) under and during the employee’s execution of his employment contract, or (2) “on the employee’s way to and from work”.

1. In case of (structural or occasional) telework, the law on industrial accidents provides a rebuttable presumption: an accident is presumed to happen during the execution of the teleworker’s employment contract if it occurred:

• first condition: at the location or locations stated in writing as the place of work, in a teleworking agreement or any other written document authorising telework, whether structurally or occasionally, collectively or individually. In the absence of such a written statement, the presumption will apply to the employee’s residence or to the place or places where the teleworker usually performs his work;
• second condition: during the period of the day stated in a teleworking agreement or any other written document authorising telework as the period during which work can be carried out. In the absence of such a written statement, the presumption will apply that during working hours that the teleworker would have to perform duties if he were working at the employer’s premises.

2. When a teleworker works from home, his journey from his home to the day-care centre or school or to the place where he gets his meals (and vice versa), is considered a journey “on his way to and from work”. Hence, an accident taking place on these journeys will, in principle, be considered an industrial accident and will be compensated.

No.

No, reimbursements of expenses related to telework remain the responsibility of the employer and cannot be deducted from the teleworker's pay or saved expenses.

N/A

In regard to structural telework, CBA 85 provides that the employer shall inform the teleworker of the applicable legislation and company rules for data protection. The teleworker must comply with these laws and rules.

CBA 85 also specifies that teleworkers must care for the equipment entrusted to them.

In November in France, employers’ and employees’ trade unions will begin to negotiate a new national cross-industry agreement covering all eventualities of work from home (e.g. which positions are eligible, whether and for how long one may work abroad, the number of days one may work from home in any given period …).

CBA 85 and the law of 5 March 2017 provide that teleworkers must benefit from the same working conditions during teleworking as when working in the company.

Occasional or structural telework cannot therefore lead to any modification of the rights and obligations of the teleworker compared to the days when he is working on the company's premises.