Telework in times of COVID-19
One of the measures to combat the COVID-19 crisis is the introduction of recommended or compulsory telework for employees.
The legal framework for this type of telework was unclear for a long time. In order to finally provide some guidance for the government-recommended/compulsory telework, the National Labour Council recently concluded a new collective labour agreement, cla no. 149.
In this newsletter, we explain what this means for you in practice.
What type of telework is concerned?
Cla no. 149 creates a new type of telework, “corona telework”.
Until the introduction of corona telework, we distinguished two types of telework:
- Structural (= regular) and voluntary telework, governed by cla no. 85. The most important obligation of cla no. 85 is that the employer and the employee should agree upon an annex to the employment contract including a number of mandatory mentions. You will find a detailed explanation about this here.
- Occasional telework, for telework performed occasionally in cases of force majeure, i.e. when the employee is unable to come to work due to unforeseen circumstances and independent of his will. This type of telework does not require a formal framework and is governed by the Act concerning Agile and Workable Work.
When telework was imposed by the government during the first lockdown in March 2020, it was assumed for a long time that this compulsory telework could be considered as occasional telework. As the compulsory telework continued, opinions began to differ and legal uncertainty increased.
Taking the recurring lockdowns into account, and therefore the recurring obligation of telework, cla no. 149 was introduced by the end of January 2021 in order to have a separate legal framework for the corona telework imposed by the government.
Who has to introduce a policy?
All employers whose employees perform telework based on a government decision and that did not yet have a policy about telework on 1 January 2021.
! If you already had a telework policy before 1 January 2021 (for example in the form of an annex to the employment contract in the framework of cla no. 85), that policy continues to apply.
! Cla no. 149 still allows you to introduce a structural telework policy for indefinite duration, for example in the framework of cla no. 85.
How does the employer introduce this policy?
This can be done in several ways:
- a collective labour agreement on company level (if there is a trade union delegation in your company); or
- a modification of the workers’ regulations; or
- individual arrangements with employees; or
- communicated telework policies.
The individual arrangements and telework policies have to be communicated explicitly, for example through the intranet, via e-mail etc.
What should the policy include?
Cla no. 149 aims to create a framework for the corona telework. The teleworker should be informed about the specific employment conditions complementary or derogatory to the employment conditions that are applied when the employee works at the employer’s premises.
First of all, employer and employee should make arrangements about:
- the provision by the employer of the equipment necessary for the telework as well as technical support, for example by providing a laptop;
- costs related to the installation of relevant IT programs, costs of use, operating costs, maintenance costs and write-off, if the employee uses his own equipment;
- additional connection costs, for example use of personal phone subscription by the employee.
Employer and employee should, to the extent possible, make arrangements about:
- the working time schedules. In case of lack thereof, the teleworker will work according to his usual working time schedule;
- following up on results and evaluation criteria;
- (in)availability of the employee.
Furthermore, the employer should in any event inform the employee about:
- the rules about the company concerning the protection of data as well as limitations and sanctions for the use of IT equipment and tools;
- the methods used by the employer to monitor the results and/or the employee’s performance (if applicable). Any monitoring should be done in an appropriate, proportional manner and respecting GDPR rules;
- wellbeing policy and prevention guidelines, in particular about the furnishing of the work place at home, adequate use of screens and the available support in terms of technology and IT;
- the names and contact data and the support offered by the direct supervisor, prevention advisors competent for safety at work, occupational medicine and psychosocial aspects of the internal or external prevention service, and if applicable, the trusted person(s).
Other modalities of “corona telework”
The teleworker has the same rights and obligations in terms of employment conditions as those applicable when he works at the employer’s premises.
Furthermore, the teleworker organizes his own work, within the framework of the working time applicable within the company.
Finally, cla no. 149 determines that the employer should take appropriate measures in order to maintain the teleworkers’ connection with the colleagues and the company and to avoid isolation, with a particular attention to “vulnerable” employees.
Cla no. 149 has been concluded for a fixed term and is valid until 31 December 2021.
Point of action
If you did not yet introduce a formal teleworking policy within your company, you need to do so as quickly as possible in order to be compliant with cla no. 149.