The Coronavirus is disrupting work relations. New rules have been urgently adopted in recent days to help employers deal with the consequences of government measures imposed to contain the epidemic. Let’s take stock of the HR situation to date.
HOW TO (RE)ORGANISE WORK?
The ministerial decree of 18 March 2020 stipulates:
- For the majority of employers in the private sector, the obligation:
- to organise telework for all jobs for which this is possible;
- if this is not possible, to reorganise the working conditions in the usual workplace (and during transport time, if collective transport to the workplace is provided for, which is often the case in the construction sector) so that everyone can be sufficiently separated (at least 1,5m) from one another (respect for social distancing). How to achieve this? By adjusting fixed working hours, by introducing flexible working hours, by organising rotations, etc.;
- if this is not possible, to close the workplace.
- That the above rules do to apply for companies recognised as necessary for the protection of vital needs (this includes health institutions, the media, telecommunication infrastructure, waste collection and processing services, taxi services, fuel suppliers, production chains that cannot be stopped for technical reasons, businesses and companies involved in the food chain, etc.). These companies must nevertheless implement social distancing measures as much as possible. The list annexed to the ministerial decree is restrictive but ultimately includes many companies, which is currently giving rise to discussions between employer and union representatives in several sectors.
As warrantors of health and well-being at work, employers must ensure that risks are assessed and adequate protective measures are put in place, which means, at the very least, in addition to measures ensuring social distancing (desired or imposed):
- Review the travel and business trip policy so as to eliminate/limit travel and business trips to what is strictly essential;
- Provide for improved hygiene of the workplace (and work tools);
- Enable workers to maintain meticulous hand hygiene by providing accessible disinfectants and communicate clearly about this subject;
- Provide and communicate instructions in the event that a worker shows signs of illness, in particular infection by the Coronavirus, both with respect to the worker him or herself (isolate him or her, safeguard the manner of his or her return home, etc.) and with respect to other workers who have been in contact with him or her (disinfection of the premises, etc.).
A checklist is available on the website of the FPS Employment (https://employment.belgium.be/en)
HOW DOES TEMPORARY UNEMPLOYMENT WORK?
An employment contract that can temporarily no longer be performed due to an unforeseeable event beyond the control of the employer and the employee, is suspended for force majeure. In this case, the employer does not have to pay the salary. Compensation by the National Employment Office (“RVA” / ”ONEM”) (hereafter “NEO”) is possible and is in principle assessed on a case-by-case basis depending on the circumstances.
- Temporary unemployment because of force majeure
The position of the NEO has progressively eased in recent days to the extent that, on the one hand, it has considerably broadened the scope of application of temporary unemployment because of force majeure and, on the other hand, it has greatly simplified the formalities to access it.
Broader scope of application
Thus, for the period from 13 March 2020 (and until 5 April but extendable until 30 June 2020), a flexible application of the concept of force majeure will be accepted. The NEO has indicated that all situations of temporary unemployment related to the Coronavirus will be considered as temporary unemployment for reasons of force majeure, even if, for example, it is still possible to work on certain days. The NEO explicitly refers to the following situations in particular:
- Companies in the sectors in which a closure has been imposed by the ministerial decree of 18 March 2020 such as restaurants, bars etc.;
- Companies that are (partially) closed because they do not have tasks that can be carried out through telework for (all) their workers and they cannot respect the social distancing measures in the performance of the work and in the transport they organise (for example, companies in the construction sector);
- Companies that suffer production stoppages because they depend on suppliers who no longer deliver;
- Workers who are quarantined because they have been exposed to contamination;
It seems, moreover, that the NEO considers that, exceptionally, even situations of reduced work following a general drop in activity (reduction in the number of orders, projects, etc.) may be considered as temporary unemployment for force majeure (and no longer as temporary unemployment for economic reasons), provided, of course, that this drop in activity is linked to the Coronavirus epidemic.
It is not required that the company is completely closed down. In practice, this means that some workers may be temporarily unemployed and others may not. Workers can also alternate between unemployment days and working days (however, an unemployment day must be an entire day).
The NEO specifies that an employer who had initially sent a communication of temporary unemployment for economic reasons can thus switch to the regime of temporary unemployment for force majeure (reason: “coronavirus”) without having to complete any further formalities.
Exceptionally (and temporarily until 5 April 2020, possibly extended until 30 June 2020), it is no longer necessary to submit a file to the regional unemployment office of the NEO. A simple declaration (Declaration for Social Risk [“ASR” / ”DRS”] scenario 5) via the social security portal site is sufficient.
(Immediate) financial compensation for the workers
The worker receives, without probationary period, the amount of 65% (increased to 70% until 30 June 2020) of his gross monthly salary (the latter being capped at EUR 2,754.76 gross). In addition, a supplement of EUR 5.63 per day of unemployment is paid by the NEO.
The Minister of Employment has also just announced that workers newly declared to the NEO will immediately receive a lump-sum unemployment benefit of EUR 1,450 per month (for a full time) pending the examination of their files.
The NEO has indeed to examine a considerable number of files. The number of 400,000 files has already been mentioned, which is an unprecedented situation.
- Temporary unemployment for economic reasons
This regime, which has been simplified as regards to employees by the Collective Labour Agreement (“CAO” / “CCT”) (hereafter “CLA”) n°47 concluded within the National Labour Council (“Nationale Arbeidsraad” / “Conseil National du Travail”) on 18 March 2020, implied requesting the FPS Employment for recognition as a company in difficulty, in particular, in the current context, on the basis of unforeseeable circumstances that lead to a substantial reduction in turnover, production or the number of orders over a short period of time.
This regime allows the use of a total suspension of performance (for a maximum of 16 weeks per year) or a partial suspension of performance (for a maximum of 26 weeks per year), or a combination of the two (within the same limits knowing that 2 weeks of partial suspension is equivalent to one week of total suspension).
However, the FPS Employment has explicitly indicated that during the period of flexible application of temporary unemployment for force majeure by the NEO, it will not take any action on applications for recognition as a company in difficulty, including those submitted since 13 March 2020.
Situations of reduced turnover, orders or production resulting from the Coronavirus epidemic will therefore preferably lead to a request for temporary unemployment for force majeure. It is advised to indicate ‘coronavirus’ in the declaration and not to refer to economic causes.
The regime of temporary unemployment for economic reasons remains applicable to situations where there is a drop in turnover, production and/or orders that are not linked to the Coronavirus epidemic.
EMPLOYERS SUPPORT MEASURES
- Payroll tax: automatic deferral of 2 months (without fine or interest in arrears). The payment relating to the declaration for the 1st quarter of 2020 is therefore postponed until 15 June 2020. It is also possible to apply for a phased payment plan without a fine (to be introduced by 30 June 2020 at the latest).
We assist employers on a daily basis in understanding and implementing the new measures. The situation is constantly changing. We will keep you informed of future developments.