Be Aware February 2021

CBA 149: The Belgian government’s new legal framework for mandatory or recommended telework as part of COVID-19 virus measures

Over the last few years, telework has become increasingly popular in Belgium. Until recently, Belgian legislation, however, only foresaw two types of telework: structural telework (governed by CBA 85 on telework) and occasional telework (governed by the Act of 5 March 2017 on feasible and flexible work).

With collective bargaining agreement 149 on recommended or mandatory telework due to the corona crisis (CBA 149), applicable as from 26 January 2021 up to and including 31 December 2021, the Belgian legislator has created a specific framework for telework made mandatory or recommended by the Belgian government as part of the measures to counter the COVID-19 virus.

CBA 149 only applies to companies that have not put in place any arrangements in the framework of structural or occasional telework by 1 January 2021. If an arrangement regarding telework has already been implemented at company level, it will remain fully effective and CBA 149 will not apply. Also, CBA 149 does not affect the possibility for companies who do not yet have any arrangement in place to still develop an arrangement of indefinite duration based on CBA 85 on telework.

The aim of CBA 149 is twofold: simultaneously provide for (i) principles and a frame of reference to clarify certain issues within the companies through agreements in order to ensure legal certainty for both parties, as well as the smooth operation of the telework made mandatory or recommended by the government during the COVID-19 health crisis, and, (ii) occupational well-being policies specifically related to telework.

1. Principles and frame of reference

a. Principle: the same employment conditions apply

CBA 149 sets forth that the teleworker shall have the same rights and obligations regarding employment conditions as those that apply to him/her when he/she is working from the employer’s premises. If there are any specific, supplementary or derogatory working conditions that apply during the telework period, the teleworker shall be informed thereof by the employer.

b. Specific rules and agreements shall, however, be established

The employer must, however, establish specific rules and agreements on:

• the provision by the employer of the equipment needed for telework and technical support (e.g., a laptop);
• if the employee uses his/her own equipment, the reimbursement or payment by the employer of the costs of installing relevant computer programs and of their use, operation, maintenance and depreciation; and
• the additional connection costs.

The fact that an agreement shall be concluded on the (reimbursement of) costs does not automatically mean that an employer is obligated to grant the teleworker an additional indemnity. As a matter of fact, CBA 149 explicitly stipulates that the agreement shall take into account the global framework of costs or compensation that the employer has paid to the employee in the framework of the COVID-19 crisis.

c. Working time

Within the framework of the working hours applicable within the company, the teleworker can organise his/her own work and workload and the performance standards shall be the same as those applied to the teleworker when he/she is working at the employer’s premises. For each teleworker, the following elements are discussed and, to the extent possible, agreements are made on:

• The rules regarding work schedules. In the absence of any specific agreements to the contrary in this respect, the teleworker shall follow the work schedules that apply to him/her when working from the employer’s premises;
• The detailed rules for monitoring the results to be achieved and/or the assessment criteria:
• The (un)availability of the teleworker, which consists of the times or periods during which the teleworker must be reachable or is unreachable during working hours, in particular taking into account the employee’s work-life balance.

d. Collective rights

Finally, CBA 149 states that teleworkers have the same collective rights as when they are working from the employer’s premises and that they have the right to communicate with the employee representatives. In this respect, the employee representatives must be provided with the necessary facilities to communicate effectively with teleworkers and, particularly, with equipment and (digital) tools to enable them to fulfil their obligations.

e. Monitoring of employees

The employer can exercise control in a proper and proportionate manner on the results and/or performance of the work and the teleworker shall be informed of the manner in which such monitoring will take place. This monitoring, however, shall not be constant but only gives the employer the possibility to verify, in an appropriate and proportionate manner, whether the work performed in the framework of the telework is actually and correctly performed.

2. Well-being at work

a. Information obligations for the employer

In the framework of well-being, CBA 149 provides for a number of information obligations on the employer. In particular, the teleworker shall be informed by the employer on:

• the company’s policy on well-being at work in relation to telework. In particular, the teleworkers shall receive further information and guidelines from the employer on the preventive measures, particularly on adapting the workstation, the proper use of screens and the technical and IT support available
• the name, contact details and support provided by the immediate supervisor, the prevention advisors responsible for occupational safety, occupational medicine and psychosocial aspects of the internal or external service for prevention and protection at work, and where applicable, the person of trust.

b. Prevention of isolation of the teleworker

Finally, the employer shall take appropriate measures to maintain the connection between teleworkers and their colleagues and the company to prevent isolation. In doing so, the employer shall pay particular attention to vulnerable employees (e.g., due to their family situation).

The employer may, among other things, schedule well-organised and limited return visits to the employer’s premises while respecting sanitary regulations. As telework is obligatory for the time being, save for specific exceptions, it remains to be seen when such return visits will become possible.

If no policy on structural or occasional telework was implemented at company level prior to 1 January 2021, CBA 149 will apply. As a result, the employers subject to CBA 149 will need to take the necessary steps to implement a policy on telework based on CBA 149.

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