We already had a legal framework for recurrent home working and a separate one for “occasional” home working, but up until now there was no clear guidance on the mandatory home working imposed by the Belgian government as a measure to combat the pandemic.
Clarity at last, however, as the National Labour Council voted through Collective Labour Agreement nr. 149 on 26 January to address specifically the topic of home working due to the Covid-19 crisis.
The new CLA is suppletive in the sense that it will only apply to companies which did not already have home working arrangements (collective or individual) in place on 1 January 2021.
The main focus of the CLA is to require an agreement to be put in place for each teleworker regarding:
- the provision by the employer of the equipment and technical support necessary for teleworking, “for example the provision of a laptop” (it cannot be said that the Labour Council is not in tune with recent trends …);
- if the teleworker uses his own equipment, the reimbursement or payment by the employer of the installation costs of the relevant IT programs and the additional costs of their use, operation, maintenance and depreciation;
- the additional connection costs for the employee.
The CLA considers that these agreements should take into account the more global framework of all the costs and/or compensations paid by the employer to the teleworker during the Covid crisis, e.g. specific Covid allowances or benefits already being paid to the employees. In other words, the CLA leaves employers quite some freedom to determine how they will deal with the cost of working from home, for example a flat allowance or costs paid on evidence of individual expenditure, but it should be dealt with, one way or the other.
The CLA also confirms that in return for the obligation to meet the employee’s costs of working at home, the employer has the right to exercise a degree of control – in an appropriate and proportionate manner – over the results and/or the performance of the work he does there. That control should be exercised in accordance with the provisions of the GDPR (for example where the control amounts to monitoring and/or generates personal data) and the employees should be informed of the manner in which that control will be exercised.
The final chapter of the CLA is on health and safety. Teleworkers should be informed of the relevant terms of the company’s policy on well-being at work specifically related to telework. The employer should provide teleworkers with information and guidelines on preventive measures, in particular on adapting the workstation, the proper use of screens, working hours/rest breaks and the available technical and IT support.
Lastly, the employer should take appropriate measures to maintain the psychological and social connection between teleworkers and their colleagues as well as the company, and so prevent any damaging sense of isolation. One suggestion is to plan “well-organised and limited” back-to-the-office moments that respect relevant hygiene and social distancing regulations.
Takeways from this CLA
The recent spike in Covid-numbers suggests that mandatory working from home may be around for quite some time still. CLA nr. 149 obliges employers to have a written arrangement in place on the topic. These arrangements may take the form of a collective agreement, a chapter in the employee handbook, a policy or even an individual agreement. Everything goes, as long as it is put in writing. Hard copy paper is not required, distributing the documents electronically with acknowledgement by the employee also works.
Employers who do not comply are in breach of a national CLA, but probably of more importance, may be faced with claims from both current and former employees requesting compensation for the expenses incurred while they were working from home.