Teleworking: the legal and practical dos and don’ts

An increasing number of companies are trying to figure out how they can continue to implement telework in their policy, while maintaining a proper balance. Specialised law firm Claeys & Engels provides some clear answers.

Experience with teleworking or not, the doors of all companies in non-essential sectors closed during the lockdown and the large majority of employees started working from home. An obligation which soon turned out to be the biggest HR experiment ever. Although teleworking was no longer compulsory since 4 May 2020, the government still strongly recommended it. Since 19 October 2020, teleworking has once again become the rule and - in Brussels and Wallonia - mandatory.

Teleworking has been quite a challenge but also brought lots of advantages. The result? An increasing number of companies decide that teleworking could continue after the re-launch and even in the future of their organisation. The majority of Belgian employees would also like to evolve towards a system where working in the office and teleworking is alternated. A survey by UGent and BDO shows that even 60% of Belgian employees want to work from home at least two days a week. Even though the demand for teleworking is increasing, half of the Belgian companies do not currently have a teleworking policy in place. Many organisations are now wondering how to implement it correctly.

We speak of teleworking when two conditions are met:

1. A teleworking employee works outside the company premises. This means that teleworking goes beyond just working from home. Also co-working spaces, (internet) cafés, a second home, a hotel or even a location abroad can be teleworking locations.
2. During teleworking, information technology is used. What if an employee works from home, but without information technology? Well, in that case it’s not teleworking.

Teleworking became mandatory from one day to the next during the lockdown. That is why the FPS ELSD (Federal Public Service for Employment, Labour and Social Dialogue) turned a blind eye when organisations switched to compulsory teleworking with no legal framework to rely on. An email or a policy with some guidelines was considered enough. Now that the lockdown is behind us, teleworking should be organised within the two legal frameworks available today: occasional and structural teleworking.

1. Occasional teleworking has an incidental character. This type of teleworking is therefore the result of exceptional or urgent reasons, like e.g. the corona measures, family circumstances or a strike of public transport.
2. When employees don’t just work from home in certain well-defined situations, it is considered to be structural telework. In that case employers are required to draw up a concrete policy. And they will also have to comply with the formalities of CBA No. 85. This requires two conditions. First of all, telework must be defined in an agreement with each individual employee and, in addition, the conditions of structural telework must be respected.

The new De Croo government has now announced that it will review the existing legal framework to see if it needs to be adapted to the current circumstances.

You had no telework going on at all before the corona crisis? In that case you are obliged to first inform the works council if you want to widely introduce teleworking. The works council can make suggestions or raise objections, but does not have a veto. What if there isn’t a works council? In that case, the trade union representation will have this authority. In small enterprises without consultative bodies this obligation does not apply.

Omwille van het psychosociaal welzijn van de medewerkers moet je ook het Comité voor Preventie en Bescherming op het werk inlichten. Die zal advies geven over de nodige maatregelen om de fysieke en psychische gezondheid te beschermen en over de gevolgen van beeldschermwerk en ergonomie in het algemeen. Daartoe moet een risicoanalyse worden uitgevoerd die telewerk mee in rekening neemt.

Certain agreements may already have been made within the sector or company. For this reason, when introducing teleworking, you must always check whether additional rules have to be followed.

Because teleworking should always be voluntary, employers need to enter into an agreement with each employee individually. For current employees this may be an annex to the employment contract. For new employees, it is recommended to include it in the employment contract itself. CBA No. 85 provides for a number of matters to be included in this agreement on a mandatory basis:

• How often can an employee work from home? Are there certain days when he or she has to be at the office?
• What are the concrete expectations regarding employee availability?
• Which technical support and materials are provided?
• What compensations for telework can an employee expect?

Even though this is not mandatory, a policy on teleworking can also be useful in organisations. It could, for example, specify for which activities or events employees should be at the office and how teleworking arrangements can be cancelled.

In organisations where teleworking is rather unknown territory, there are naturally many questions about working hours and how they can be monitored. This is an important and relevant question, because teleworking does involve some exceptions:

• Teleworkers are not covered by working time legislation and therefore do not have to comply with the daily and weekly working time limits. In other words, they are allowed to work on Sundays and public holidays and are not covered by the legal ban on night work for the part that they work from home.
• The worker may organise his working time according to his wishes. For example, someone could be just a little more productive in the evenings. In that case, he or she can choose to start the working day a little later, as long as the required number of hours are worked.
• Teleworkers do not build up overtime and are therefore not entitled to overtime pay or time off in lieu. This is only possible if a work schedule has been set and the employer explicitly requests extra hours to be worked.

Would you also like to check the content of email and internet traffic? This is quite a bit harder, because this is subject to the strict rules of CBA No. 81. Moreover, these checks must be defined in detail in an ICT policy.

One thing, however, is much more important and has a greater impact than any of these checks: trust. That is the key to a successful teleworking relationship between managers and employees. After all, teleworking requires a change in behaviour not only of employees but also of managers. They must learn to manage on the basis of output instead of presence and trust that the employee is also doing his or her job well, even when they are out of sight.

Companies which had never permitted teleworking before the lockdown were not obliged but were advised to provide a telework allowance. This is also different if your organisation intends to implement structural teleworking in the future. In that case you will be required to refund the connection and communication costs (internet, telephony, fax, correspondence). This kind of stipulations can be included in the teleworking agreement. Please note: these types of expenses may already be reimbursed in a different way and may therefore not require paying an additional allowance.

As an employer, you can choose to reimburse other expenses such as a home office or the use of the employee’s own laptop. The NSSO provides two fixed allowances for these types of expenses: a fixed allowance of a maximum of €129.48 per month (please note: this amount is adjusted regularly) or an allowance of maximum of 10% of the gross salary, limited to the part related to telework. Moreover, these allowances can be combined with other expense refunds, such as an internet subscription or internet allowance (the NSSO accepts a maximum of €20 per month for this), a laptop or an allowance for the use of the employee’s own PC (the NSSO accepts a maximum of €20 per month for this) and a mobile phone with a subscription or a refund of the actual telephone costs incurred.

As an employer, you are not obliged to grant the same allowances to every employee, but it is important to have a consistent policy whereby employees with the same costs also receive the same allowance.

Teleworking has no legal impact on a company car, even though it is used less when employees work from home more often. The benefit in kind and CO2 tax do not depend on the number of kilometres driven. However, you could amend the car policy. For example, both parties could agree that the employee pays a (higher) personal contribution. Telework does have an impact on the commuting allowance. Of course, an employee does not receive an allowance for the days when he or she does not come to the office.

What if an employee has an accident while working from home? In that case, the law provides that - until proven otherwise - the accident happened while working. At least, if the accident occurs at the place(s) included in the teleworking agreement and if the accident occurs during the period of the day when the employee is working from home.

To avoid unpleasant situations, it is best to inform the work accident insurer that an employee is teleworking. You may also consider taking out insurance with 24-hour coverage.

You don't have to allow telework for every employee. You do, however, have to comply with all non-discrimination rules and regulations. The same rules should therefore apply to colleagues who do the same job or have the same status. For certain jobs, e.g. blue-collar workers, it will not always be possible to work from home.

Finally, you can prepare a policy which determines which jobs are eligible for teleworking and which are not. This allows you to determine, for instance, that an employee may only work from home if he or she has a certain seniority at the firm. Once again, clear communication and clear agreements are the key to success.

The lockdown took a lot of companies out of their comfort zone and teleworking suddenly became the new reality for organisations. A big change, that’s for sure, but since the start of the biggest HR experiment ever we can also conclude that there are many advantages to teleworking. At least if companies prepare well and introduce this new way of working correctly in their organisations. Hopefully these practical tips can help you get started.