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.

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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?

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Belgium

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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

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France

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The first French law on teleworking was adopted on 22 March 2012. It was subsequently modified by an ordinance dated 22 September 2017. Today, three articles of the labour code cover the implementation and the functioning of teleworking (articles L. 1222-9 to L. 1222-11). In addition, two national collective agreements were concluded between employers' representatives and trade unions in 2005[1] and 2020.[2]

The definitions of teleworking given by article L. 1222-9 and by the agreement of 19 July 2005 provide that the rules on teleworking only apply to employees with an employment contract. These rules do not apply to self-employed workers.


[1] National collective agreement on Teleworking – July 19, 2005

[2] National collective agreement for a successful implementation of teleworking – November 26, 2020

Last updated on 21/09/2021

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.

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Belgium

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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

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France

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Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
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?

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Belgium

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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

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France

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The rules for monitoring employees do not differ between teleworkers and office workers. Thus, like any employee, teleworkers must be informed in advance of the methods and techniques used to monitor his or her activity (article L. 1222-3 of the labour code).

The implementation of a device allowing the control of the employee's working time must be justified by the nature of the task to be performed and proportionate to the purpose (National Agreement of 26 November 2020).

The CNIL said in a Q/A on 12 November 2020 that the devices used to monitor employees’ activity must not be aimed at trapping employees and cannot lead to permanent surveillance of employees. Thus, audio or video devices, permanent screen-sharing or keyloggers must not be implemented.

If the employer exercises excessive surveillance on his employee, it may receive a financial penalty.

Finally, the CNIL advises employers to prioritise monitoring the completion of missions by setting objectives rather than monitoring the working time or the daily activity of employees.

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)?

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Belgium

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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

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France

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French law has no provision for this.

It is, therefore, necessary to refer to the two national agreements of 2005 and 2020. These agreements stipulate that the costs incurred by the employee in the performance of his or her employment contract are borne by the employer. This obligation also applies to teleworkers. However, the national agreement of 2020 sets a few conditions for this coverage: the prior validation of the employer, the expense must be incurred for the needs of the professional activity of the employee and in the interests of the company.

The organisation responsible for collecting social security contributions (URSSAF) has issued a list of expenses that must be covered by the employer. These costs include ink cartridges, paper, telephone and internet subscriptions, electricity, heating, a proportion of rent in certain cases (see below) and home insurance.

The terms and conditions for covering business expenses (maximum amount, the procedure to follow, etc.) may be defined unilaterally by the employer, by mutual agreement between the employee and the employer, or by a collective agreement between the employer and the company's unions. Article 3.1.5 of the national agreement of 2020 and the Ministry of Labour recommend doing everything possible to reach an agreement between the employer and the unions.

If teleworking becomes permanent and the employee no longer has an office on the company's premises, the employer must pay a home occupation allowance.[3]

As for the use of the employee's personal equipment, the principle is that the employer must provide the employee with a computer for teleworking. However, if the employee agrees, they can use their personal equipment (article 7 of the national agreement of 19 July 2005).


[3] Cass. Soc, 14 septembre 2016, n°14-21.893

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?

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Belgium

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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

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France

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Cross-border remote working can accentuate some of the problems caused by teleworking or create new ones.

Among the existing problems, the loss of social ties is accentuated if the teleworker decides to work from another country. Indeed, the employee abroad will never physically see his colleagues, which will create a distance between the employee working from abroad and other employees.

Similarly, employers must ensure the protection of the health and safety of workers (article L. 4121-1 labour code). This is a difficult obligation to meet in teleworking, especially because employers do not have access to remote employees’ workplaces. It is even more difficult if the employee works from another country because the sanitary, electrical and other standards are different and potentially less protective than French rules.

As for social security law, in principle, the employee depends on the social security system of the country where they work. The employee can only continue to benefit from the French social security system if they are in a secondment situation. Moreover, this is only a temporary solution because the secondment implies a temporary mission. The employer will therefore have to register the employee with the social security system of the country where they are working, which will cause problems in terms of social contributions.

Another question that may arise is whether an employer should accept a work stoppage prescribed by a foreign doctor.

Finally, another problem that may arise is the employee's right to disconnect. Indeed, the employer and the employee must agree on a time slot during which the employee can not be contacted to respect his private life as much as possible.[4] It can be difficult to establish a time slot that suits both the employee and the employer in case of major time zone discrepancies.


[4] National agreement of November 26, 2020

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?

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Belgium

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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

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France

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Teleworkers have the same rights as employees who work from a company's premises (article L. 1222-9 III of the Labor Code).

Employers cannot modify employees’ remuneration without obtaining agreement.[5] This rule also applies to teleworkers.

In some countries such as the United States, employers can adjust the remuneration of teleworking employees to the cost of living in the employee's place of residence. This practice is not prohibited in France but the employer must be careful in doing so as it could constitute discrimination based on the place of residence, which is prohibited by the labour code[6]if it is not justified by objective elements. 

However, employers can withdraw a few benefits from teleworking employees. Indeed, even if the Ministry of Labor says in a Q&A that the telecommuting employee must receive lunch vouchers like other employees, some jurisdictions believe that the employer can stop paying these vouchers to teleworkers because they are not in a comparable situation to employees who work from a company's premises.[7]

As for transportation costs, the employer must cover half of the cost of the transportation pass used to travel to the office and to return home from the office (article L. 3261-2 of the labour code). If the employee does not have to travel to work during the month, the employer does not have to pay transportation costs.


[5] Cass. Soc, 18 oct. 2006, n°05-41.644

[6] Article L. 1132-1 Labour code

[7]TJ Nanterre, 10 mars 2021, n° 20/09616

 

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?

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Belgium

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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

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France

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Employers can require that their employees are vaccinated only if the vaccination is made mandatory by the French Public Health Code.

In France, vaccination against covid-19 has not been made mandatory (except for health professionals). Therefore, French employers cannot force their employees to be vaccinated. However, they can recommend it to their employees without forcing them (please note that due to the Law of 5 August 2021, employees are entitled to leave to attend covid-19 vaccination appointments).

Please note that a law was passed by Parliament on 5 August 2021 and states:

  1. To make access to certain places, establishments or events conditional upon the presentation of either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following covid-19 infection.

This would only cover the following activities:

  • recreational activities;
  • bars and restaurants (except company restaurants), including terraces;
  • department stores and shopping centres by decision of the Prefect of the district in the event of risks of contamination under conditions guaranteeing access to essential shops and transport;
  • seminars and trade fairs;
  • public transport (trains, buses, planes) for long journeys; and
  • hospitals, homes for the elderly and retirement homes for companions, visitors and patients receiving care (except in medical emergencies).

In those specific cases, from 30 August 2021, an employer undertaking the above activities may ask their employees to present one of these documents, including proof of vaccination status. If an employee is unable to present such documents and chose, in agreement with their employer, to not use paid holidays, the employer can suspend the employee’s contract, on the same day. This suspension, which can lead to an interruption of salary, ends as soon as the employee produces the required proof.

If the suspension goes beyond three working days, the employer shall invite the employee to a meeting to attempt to rectify the situation, including the possibility of temporarily reassigning the employee to another position within the company not subject to this obligation.

  1. Mandatory vaccination for health professionals, including those working in an occupational health service according to article L.4622-1 of the labour code.

The health professionals listed in article 12 of the law of 5 August 2021 (doctors, nurses, doctors working in occupational health services, osteopaths etc) must be vaccinated as of 9 August 2021, unless there is a medical contraindication or a certificate of recovery can be presented.

Please note that the law provides for a transition period as follows:

  • up to and including 14 September, the staff concerned may present a negative test  that is less than 72 hours old (RT-PCR screening test, antigen test or self-test carried out under the supervision of a health professional) if they are not vaccinated;
  • between 15 September and 15 October inclusive, when an employee has received the first dose of vaccine, he or she may continue to work provided that he or she can present a negative test result; and
  • from 16 October 2021, they must present proof of the complete vaccination schedule.

This obligation does not apply to people who perform occasional tasks. The Ministry of Labour defines “occasional tasks” as a very brief and non-recurring intervention that is not linked to the normal and permanent activity of the company. Workers who carry out these tasks are not integrated into the workgroup and their activity is not public-facing.

This may include, for example, the intervention of a delivery company or an urgent repair.

On the other hand, the following are not occasional tasks: carrying out heavy work in a company (eg, renovation of a building) or cleaning services, because of their recurrent nature.

When carrying out an occasional task, the workers concerned must ensure that they comply with social distancing rules.

Employees who have not presented one of these documents can no longer work. Thus, when an employer finds that an employee can no longer carry out their work, the employee must be informed without delay of the consequences of this prohibition, as well as the means to rectify the situation. A dialogue between the employee and employer to discuss ways of rectifying this situation is encouraged.  An employee who is prohibited from working may, with the employer's agreement, use days of rest or paid leave. Otherwise, their employment contract will be suspended.

The suspension of the contract, which leads to the interruption of salary, ends as soon as the employee fulfils the conditions necessary to continue working.

When the employer or the regional health agency finds that a health professional has not been able to carry out their role for more than 30 days, it informs the national council of the order to which they belong.

Please note that, according to the law of 5 August 2021, the employer must inform the new works council (CSE) of measures taken to implement any obligations to verify the vaccination of health professionals or the health passes of employees who come under the aforementioned sectors.

Last updated on 21/09/2021

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?

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Belgium

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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

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France

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For employees for whom vaccination is not mandatory, employers cannot make entry to the workplace conditional on vaccination, nor can they threaten to dismiss the employee if they have not had the vaccine.

If an employer makes the return to the company premises conditional on vaccination, they are violating the employees’ privacy and medical confidentiality, and employees may freely refuse it. In case of dismissal, it could be judged null and void since it may violate the employee's privacy and medical secrecy.

On the other hand, for employees working in the above-mentioned establishments (bars, restaurants, department stores, shopping centres etc.), the employer may make the return of the employee to work conditional on the presentation of a health pass (either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following a covid-19 contamination).

Finally, for health professionals, there will be no risk for the employer. The employer will be able to condition the return to the premises on proof of vaccination status.

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?

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Belgium

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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

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France

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Please see above (questions 8 and 9) regarding the workplaces and specific industries concerned by making the access to the workplace conditional on individuals having received a Covid-19 vaccination.

Last updated on 21/09/2021

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?

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Belgium

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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

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France

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Moreover, regarding the processing of data relating to an employee’s vaccination, the CNIL has not yet issued a directive on the specific subject of the processing of employee vaccination data by employers. Because of their sensitive nature, data relating to employee health are subject to special legal protection: they are in principle prohibited from being processed. Employers, therefore, may not keep a list of vaccinated employees, or disclose the names of those who do not wish to be vaccinated.

In fact, according to the CNIL, "because of their sensitive nature, data relating to a person's health are subject to special legal protection: they are in principle prohibited from being processed. In order to be processed, its use must necessarily fall within one of the exceptions provided for by the GDPR, thus guaranteeing a balance between the desire to ensure the security of individuals and respect for their rights and fundamental freedoms. Moreover, their sensitivity justifies that they be processed under very strong conditions of security and confidentiality and only by those who are authorized to do so.

The exceptions that can be used in the context of work are limited and can generally be based on either :

  • the need for the employer to process this data to meet its obligations in terms of labour law, social security and social protection: this is the case for the processing of reports by employees,
  • the need for a health professional to process such data for the purposes of preventive or occupational medicine, (health) assessment of the worker's capacity to work, medical diagnoses etc.

For these reasons, employers who would like to initiate any steps aimed at ascertaining the state of health of their employees must rely on the occupational health services.

The CNIL points out that only competent health personnel (in particular occupational medicine) may collect, implement and access any medical forms or questionnaires from employees/agents containing data relating to their health or information relating in particular to their family situation, their living conditions or their possible movements"

However, we find these exceptions difficult to apply in the context of covid-19.

For employees subject to mandatory vaccination, the law allows the employer, or regional health agency if applicable, to store the result of the check on the proof of vaccination status.

Please note that the employer may not keep the proof of vaccination. In other words, the employer may not keep the QR code, only the “Yes/No” result of the test. Keeping the result is limited in time (currently until 15 November 2021).

The information thus collected is personal data subject to the General Data Protection Regulation (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?

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Belgium

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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

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France

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The health and safety considerations for employers in respect of remote workers are the following:

  • Modes of work time control or workload regulation;
  • Determination of the time slots during which the employer can usually contact the remote worker to respect the right to disconnect and the right to privacy;
  • Organise an annual meeting to discuss working conditions and workload; and
  • Evaluate professional risks, in particular those linked to the employee's distance from the colleagues and regulating the use of digital tools.
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?

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Belgium

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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

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France

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The pandemic does not strictly speaking have an impact on employers' obligations towards workers' health and safety beyond the physical workplace. But the National Interprofessional Agreement on remote status was renegotiated on 26 November 2020 and strongly raised awareness among employers on those issues to:

  • Communicate within the work community;
  • Adapt the managerial practices: trust and definition of clear objectives;
  • Train managers and employees;
  • Maintain social ties and prevent employees from isolation: it is useful to plan group time, to set up remote communication means to facilitate exchanges, to assist in case of difficulties with computer tools, etc; and
  • Make available to all employees, including those working from home, relevant contacts so that employees in vulnerable situations can use them.
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?

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Belgium

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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

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France

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No, the legal and conventional provisions on health and safety at work apply to both mobile workers and workers based primarily at home. It must be taken into account that the employer cannot have complete control over the place where teleworking is carried out and the environment, which is part of the private sphere. This implies an occupational risk assessment adapted to the case of mobile workers and the case of workers based primarily at home.

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?

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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

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Employers are liable within the limits of their obligations (see question 12). As long as employers respect these obligations, in case of litigation, it will be up to the employee to demonstrate that the deterioration of their health is related to the employer's failure to respect its obligations.

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?

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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

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

During the pandemic, employers were able to carry out reorganisations involving collective redundancies for economic reasons (subject to justifying a real and serious economic reason as defined by article L.1233-3 of the labour code).

They were also able to negotiate collective performance agreements to meet the needs linked to the operation of the company or to preserve or develop employment by adjusting the working hours of employees, remuneration, and determining the conditions of professional or geographical mobility within the company.

Employers may also have to negotiate or renegotiate agreements or charters on remote status or review their organisation by developing a co-working space, different from the company’s premises, on a regular or occasional basis or in case of exceptional circumstances or force majeure.

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?

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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

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

In general, employees and new works council members have a right to alert and withdraw from any situation which they have reasonable grounds to believe presents a serious and imminent danger to their life or health (article L.4131-1 and L.4121-2 of the labour code).

Apart from these actions, the new works council or the unions will always have the ability to report to the employer any malfunction affecting the entitlements and rights of remote workers.

In any case, please note that employees who wish to terminate their status as a remote worker will have priority to assume resume a non-teleworking position that corresponds to their professional qualifications and skills and to inform the employer of the availability of any such position (article L.1222-10 of the labour code).

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)?

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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

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Remote-working is implemented within a collective agreement negotiated with the unions or, failing that, within a charter drawn up by the employer after the opinion of the new works council if it exists (article L.1222-9 of the labour code).

The collective agreement or, failing that, the charter drawn up by the employer specifies:

  • The conditions for switching to remote status, in particular in case of a pollution episode, and the conditions for returning to performance of the employment contract without remote working;
  • The terms of acceptance by the employee of the conditions of implementation of remote status;
  • The modes of control of the working time or regulation of the workload;
  • The determination of the time slots during which the employer can usually contact the remote worker; and
  • The modes of access to a telework organisation for disabled workers.

The way of negotiation seems to be prioritised by the legislature. Apart from those mandatory clauses, the social partners have every interest in being a force of proposals, which will be accepted or refused by the employer. If the unions refuse to sign the agreement, the employer may provide for these measures in the framework of a charter, which it may implement after the opinion of the new works council (non-binding opinion).

Finally, in the absence of a collective agreement or charter, when the employee and the employer agree to telework, they may formalise their agreement by any means.

Last updated on 21/09/2021