New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

Choose countries

 

Choose questions

Choose the questions you would like answering, or choose all for the full picture.

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

For several periods during the pandemic, the government strongly recommended remote work or even made it mandatory, except for where remote work was not possible. The requirement to perform remote work was lifted on 27 June 2021. However, a fourth wave of infection in November 2021, caused the government to introduce a new obligation for workers to perform remote work at least four days a week. Employers have to register who in their workforce is capable or not capable of doing remote work through an online social security platform (used by the social inspection to enforce the obligation).

Belgium already recognised three legal systems for remote work or “teleworking”. There is the system for homeworking (the oldest form of teleworking without the use of technology); since 2005, the system for structural teleworking (for more permanent forms of remote work) based on the European Framework Agreement on teleworking of 2002; and since 2017, the system for occasional teleworking (eg, for situations of force majeure). When the government made remote work mandatory during the pandemic, it was unclear which system would apply to this “corona-teleworking”.

Aiming to bring an end to the discussions and to provide a general framework, the national social partners concluded Collective Bargaining Agreement (CBA) No. 149 regarding recommended or compulsory teleworking caused by the coronavirus crisis on 26 January 2021, which applies to the private sector. However, this CBA did not bring any clarity on the discussion regarding the applicable teleworking system during the pandemic, given that it only applies to organisations that had not yet implemented one of the existing teleworking systems. The other systems for teleworking, therefore, still apply to this situation in some organisations. Independent contractors and gig workers (as far as they can be considered self-employed) do not fall under the scope of this CBA. However, self-employed workers are also forbidden from workplaces if they can work remotely (except for one day a week).

Last updated on 25/01/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Employees who process data at home could create a data leak when they lose the data or improperly dispose of it after it is no longer useful for the company. It is also more difficult to protect digital data in a non-professional setting and a private network might be more vulnerable to breaches.

Article 9.3 of CBA No. 149 states that company data used and processed by teleworkers for professional purposes must be protected. Employers should inform teleworkers of the company's rules on data protection and, in particular, the restrictions and penalties for the misuse of IT equipment and tools. Considering this, it is strongly recommended for companies to draft and implement an IT policy.

Also, employees’ personal data could be at risk since teleworking often means a direct insight into the personal life of the employee, using remote-monitoring devices. Such devices or software could register data that is not purely linked to their work and might possibly breach several GDPR principles, such as data minimisation.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Articles 9.1 and 9.2 of CBA No. 149 state that employers may monitor the results or performance of employees appropriately and proportionately. Teleworkers must be informed of how such monitoring is carried out. If employers want to monitor the e-mail or internet activity of employees, they will have to follow the specific procedure laid down in CBA No. 81 for the protection of the privacy of employees, concerning the monitoring of electronic online communication data.

In addition, CBA No. 68 regulates the use of cameras in the workplace. Under this CBA, it is only permissible to use cameras to pursue a limited amount of objectives, including the control of the employee’s work. Yet, for this objective, only temporary monitoring activities are permitted. In any case, a proportionality test is necessary. It will never be proportionate to request that remote workers be permanently recorded by a camera in their homes. However, simply asking them to turn their webcam on during a meeting is not covered by CBA No. 68 and should be possible.

It is also possible to make arrangements with employees regarding the periods during which they need, and do not need, to be contactable by the employer (article 11.3 CBA No. 149).

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Article 7 CBA No. 149 states that employers need to arrange with employees on the provision of work equipment and reimbursement of costs related to remote work (use of a private computer, internet, electricity and gas etc). However, this provision does not include an obligation for employers to provide equipment or to reimburse these costs; it is also possible that there is no such compensation. Nonetheless, reimbursement of these costs is an attractive compensation tool for employers, as they are excluded from income tax or social security contributions (up to a certain limit).

Only a limited group of employees who fall under the homeworking system are entitled by law (article 119.6 Employment Contract Act) to remuneration of 10% of their salary to reimburse costs related to homework.

If an employee cannot work remotely because their employer refuses to provide a laptop (which an employee might not have), it could become impossible for that employee to work, which could be considered a breach of contractual and legal obligations by their employer.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

There are many issues at stake, as the foreign states could apply their public order labour law provisions, require a work visa, apply their social security scheme (and contributions) and their income tax obligations. This usually depends on whether these states are part of the EU or EEA (or if they have bilateral treaties with Belgium) and the duration of the cross-border work; if it lasts long enough to lose its temporary nature, the full scope of the foreign legal system may become applicable.

For foreign nationals coming to Belgium, Belgium will apply almost all of its labour law provisions immediately to the remote worker, except for rules concerning the conclusion and termination of employment contracts, including non-compete clauses laid down in the Employment Contracts Act. After 12 months, rules concerning the general obligations of employers and employees, the liability of employers for the actions of their employees and the suspension of employment contracts will also apply.

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

In general, this would be considered a unilateral modification of the employment contract, which can be seen as an irregular termination of the employment contract by the employer, who will have to pay in lieu of notice if an employee claims this. However, the employer will no longer have to pay any agreed commuting expenses (but if the employer pays for a public transport subscription, this would just continue).

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Although there is an ongoing discussion, the majority of the legal community believes that employers cannot force employees to get the covid-19 vaccine. This opinion is shared by the Federal Public Service of Work, the Belgian Data Protection Authority and the Federal Anti-discrimination Institute (Unia). If there is no legal basis for this obligation, employers seriously risk a violation of the privacy rules of the GDPR and the anti-discrimination Act of 2007 (discrimination based on health status).

Certain voices in the legal community state that an employer could make vaccination mandatory based on an obligation to create a safe and healthy working environment, but this legal basis does not seem specific enough to effectively remove the risks. For now, the Belgian government does not appear eager to create a legal basis for mandatory vaccination, but this could change in the future.

However, the government did reach an agreement regarding the mandatory vaccination of healthcare personnel (which will enter into force in 2022). For now, the legislative proposal has not yet been approved by parliament.

Last updated on 25/01/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

As stated above, the employer risks a violation of the GDPR and the Anti-discrimination Act.

In principle, the GDPR prohibits the processing of sensitive data regarding the health status of persons, unless there is a valid ground for such processing. As employees cannot freely give their explicit consent for this processing to their employer (as per their hierarchical relationship), such processing would require a legal basis, which does not exist. A violation of the GDPR could result in a fine by the Belgian Data Protection Authority (up to 20 million euros). The Belgian Data Protection Authority has confirmed that without a legal basis, it is not possible to process data on the vaccination of employees.

Next, such a condition could be seen as discrimination based on health status, according to the Anti-discrimination Act of 2007. However, a distinction based on health status can be justified by a legitimate aim and when the measures to reach this aim are appropriate and proportional. One could argue that the prevention of the spread of covid-19 is a legitimate aim and that an obligation to get vaccinated is appropriate. However, some would state that mandatory vaccination is not proportionate, as employers can take other measures (eg, social distancing, teleworking) to prevent the spread of the virus. At least Unia does not seem to believe that a mandatory vaccination can be justified. A discrimination claim could, for example, result in a damages claim (lump-sum compensation of three to six months’ salary). A legal basis for mandatory vaccination would take away this risk of discrimination.

The Federal Public Service of Work also notes that a mandatory vaccination would violate the Act of 22 August 2002 regarding patients’ rights. This Act provides for freedom of choice for all patients undergoing medical treatment.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Until now, there have been no such requirements. But as stated above, this will be the case in the healthcare sector, starting from 1 April 2022.

Last updated on 01/12/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Employers are not entitled to ask their employees about their medical or vaccination status. If employers were to require employees to share this information, they would violate the right to privacy of the employees and the rules of the GDPR.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Until the pandemic, there were almost no legal rules relating to health and safety for remote workers, other than those laid down in article 15 of CBA No. 85 on structural teleworking. This article states that the act of teleworking should be communicated and also the rules concerning health and safety, specifically the use of computer screens, should be respected. Next, the health and safety prevention service would also need to access the workplace of the teleworker to see whether health and safety rules are respected or correctly applied.

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

As a result of the pandemic, the issue of health and safety in a teleworking context has received greater attention. Yet, employers hardly have any (meaningful) obligations regarding a remote worker’s well-being. CBA No. 149 introduced several provisions in this regard, for example, the obligation to inform teleworkers about the company’s policy on well-being at work and preventive measures, including those regarding the setting of the workstation, and the use of displays and technology.

In addition, remote workers should be informed of the contact details of different staff members, such as their immediate supervisor; the advisers responsible for occupational safety, medical and psychological aspects of work; and, if applicable, a confidential advisor (ie, a confidant with whom employees can discuss any issues they have).

Furthermore, employers must provide measures to maintain the connection of remote workers with their colleagues and with the company, to prevent isolation.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Mobile workers do not fall within the scope of CBA No. 149. Therefore, the obligations mentioned in Q13 do not apply to them.

The generic guide on the prevention of the spread of covid-19 provides specific guidelines for employers regarding workers who work at another location, for example, with other employers or private individuals. Employers should check beforehand what safety measures apply to the place where the work will be performed. This information should be shared with employees together with the necessary instructions. Please note the generic guide is merely an instrument of the government to provide guidelines and has limited legal value.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

The only provisions on the mental health of remote workers can be found in CBA No. 149. A risk analysis performed by the employer should include a psychological dimension. Remote workers should have the possibility to have a so-called psychosocial intervention or a spontaneous consultation with an occupational physician. The concept of “psychosocial intervention” originates in the Belgian Well-being Act, which introduces a chapter dedicated to the prevention of psychological risks including stress, violence, bullying and sexual harassment. A psychosocial intervention consists of a conversation with a confidante or a prevention advisor, to resolve the conflict or issue at hand.

In addition, the aforementioned obligation of employers to enhance contact between remote workers and colleagues to avoid isolation is also aimed at preserving the mental health of employees.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

In the Belgian legal system, employers can use the system of “temporary unemployment due to force majeure” during the pandemic. This is a simplified procedure to ensure that employees whose work has become impossible or redundant during the pandemic can receive temporary unemployment compensation. When the job becomes viable again, for example, because of the reopening of restaurants, employees can resume their activities, without redundancy.

Furthermore, working hours can be temporarily reduced in the context of the pandemic. The Act of 27 March 2020 added a new section 8/1 in the Programme Act (I) of 24 December 2002, regarding measures for companies facing financial difficulties in the context of the pandemic. Specifically, the option was given to companies to reduce the working time of employees, thus reducing wage costs without having to terminate employees, with the reduction in social security contributions acting as compensation. Furthermore, the reduction in working hours implies a pro-rata reduction in gross pay. Therefore, a collective labour agreement (or work regulation) must provide for salary compensation. It should be noted, however, that even after the introduction of a reduction in working hours, full-time workers will remain full-time workers. The minimum wages set out in CBA No. 43, as well as sectoral minimum wages, must still be respected.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Trade unions have lobbied and collectively bargained for a specific legal system for teleworking during the pandemic, to clarify the obligations and rights of teleworkers during the pandemic. They were hoping for mandatory compensation for costs by employers; ultimately, this was not included in CBA No. 149, which formed the result of the negotiations. The trade unions have also bargained for, in the context of a national interprofessional agreement, a so-called coronabonus of 500 euros for employees of any company that has reported profits in spite of the crisis.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

Flag / Icon

Belgium

  • at Van Olmen & Wynant

Based on CBA No. 149, a consultation is required. Article 4 of the agreement differentiates how its principles can be applied: by collective labour agreements concluded at a company level; by an amendment to the work regulations; by individual agreement; or by duly communicated teleworking policies. In each case, they must be drawn up under the rules of consultation within the companies and any competent bodies or, in the absence of such bodies, with the workers, taking into account the particular conditions applicable to the company.

Last updated on 21/09/2021