Remote Working Legislation, Laws & Regulations in Belgium

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) due to an employee’s personal reasons that prevent them from carrying out their work at the employer’s company premises. In these 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 common forms of remote working.

• With 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 any other documents (e.g. CBA, internal policy, annex to the work rules). However, nothing prevents the employer from creating these types of documents.
• With 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, 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. The CBA regulating eventual temporary teleworking in the context of the COVID-19 pandemic ceased to be in force on 31 March 2022.

In this context, the employer cannot force employees to telework on an occasional basis anymore.

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

• With 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 must 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).
• With 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.

• With 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.
• With 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.

• With 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.
• With 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.).

• With respect to structural telework: CBA 85 provides that the employer must 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 teleworking 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.
   
• With 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.

With regard to structural telework, CBA 85 provides that the employer must ensure that measures are taken to prevent the teleworker from ending up isolated from other employees of the company, such as furnishing 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.

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

Under Belgian law, a teleworker remains covered by the '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 their 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 as 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, reimbursements of expenses related to telework remain the responsibility of the employer and cannot be deducted from the teleworker's pay or saved expenses.

Regarding structural telework, CBA 85 provides that the employer must 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.

No.

“Mobile work abroad” as such is not defined in Belgian law. In general, it refers to the situation where an employee through the use of technology temporarily performs work at a self-chosen location in another country than the traditional office of the. In the context of mobile work abroad, the popularity of the phenomenon “workation” has grown in Belgium since the COVID-19 pandemic. The term “workation” forms a combination of the words “work” and “vacation” and is characterised by the performance of work on a continuous basis from a holiday location where it is possible both to work and to carve out moments for relaxation.

There is no Belgian legislation that specifically applies to mobile work abroad. Nevertheless, there are hurdles in the form of workplace accidents, tax returns and general rules and regulations that should be considered. After all, remote work abroad can have consequences in several areas (e.g. applicable labour laws, social security and taxation). Remote work can also impact immigration and other legal formalities, depending on the location of the remote work.

The labour law provisions that apply to Belgian employees working abroad for Belgian employers are determined by international law. In general, there are two possibilities:

1. A choice of (labour) law: If the employer and employee choose Belgian law, Belgian law will apply during mobile working abroad.
2.  No choice of (labour) law: If no choice of law is made, the law of the “home country” (i.e. the country in which the employee habitually carries out the work in performance of the employment agreement) applies. Since mobile work abroad is  as a rule of a temporary nature, Belgian law remains applicable during mobile work abroad. In case the employee wishes to work abroad on a more structural basis, it should be verified whether the applicable (labour) law may change.

Note that in both situations (i.e. points 1 and 2 above) mandatory law of the foreign country (e.g. minimum wage or working hours) may also apply during mobile work abroad depending on the local regulation and the length of the work abroad. 

The general rule is that employees are subject to social security in the working state. This means that an employee is subject to the social security laws of the working state unless specific conditions have been satisfied for short-term secondments to a working state. Relevant jurisdictions may have concluded social security treaties that deal with social security liability in cross-border situations.

Within the EU, specific regulations for social security are in place, which also still applies to the UK. In accordance with EU regulations, an employee is generally subject to the social security system in the working state, unless the employee works at least 25% in his home state. On the basis that the employee will work for at least 25% in his home state, the employee will not be subject to foreign social security laws in the foreign place of employment (within the EU).

If a foreign social security system applies, it is possible that the employee is contributing to multiple social security system. This will have to be assessed on a case-by-case basis. We would advise to always check with a local legal counsel.

In case of short-term “workations”, the tax residency (i.e. unlimited income tax liability) will normally remain with the jurisdiction where this person has a permanent home (i.e. ‘home state’). However, the work performed from the foreign place of employment could also trigger an income tax liability in that jurisdiction on grounds different than tax residence. To avoid double taxation on the income of the employee by two or more jurisdictions, most countries have concluded double tax treaties.

On the basis of most double tax treaties there would be generally no tax exposure on the employee’s salary in the foreign jurisdiction if the employee physically spends less than 183 days in the foreign jurisdiction (i.e. not the residence state) during a twelve-month period commencing or ending in the fiscal year concerned, provided that the employer does not have a permanent establishment through the activities of the employee in that foreign jurisdiction (see the next question below) and salary costs of this employee are not recharged by the employer to one of their companies in that foreign jurisdiction (if and to the extent that there are any group companies present in that jurisdiction).

An employee with a nationality of the European Union (EU), European Economic Area (EEA) or Switzerland (EU National) is allowed to live and work in other EU/EEA countries and Switzerland without a visa or residence permit.

However, if an EU National wishes to work in a country outside of the EU, EEA and Switzerland, it is important to make sure if the employee needs a valid residence permit and/or work permit to be able to work legally in that country. In each situation, we would advise checking the requirements with a local legal counsel.

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.