Following the deepening of the COVID-19 crisis in Belgium and the dramatic development of the public health situation, the Belgian government promulgated new rules, notably on telework and homework, to be effective from 2 November onwards (for a period of at least six weeks, but extendable) (Ministerial Decree, 1 November 2020, the ‘Decree’).
Commentators of all kind have already read and interpreted the Decree in various, sometimes incorrect ways. Because of arising confusion in this context, a summary of the new rules on telework and home working for the business community appears appropriate, as follows:
First, many businesses which are open to the public are to be closed. The list of businesses up for closure – mainly retail and hospitality – as of 2 November is published in the Decree. The blurring of retail in the market (flower/gardening shops selling furniture, supermarkets selling clothes, etc.) and some other flaws in the list may well lead to dispute and even litigation. Also, the list of those retail businesses which remain open appears to be longer than the list of those to close.
Second, many businesses (which are not open to the public) are considered to be serving the nation’s vital interests and the needs of its population. The annex to the Decree provides a list which encompasses most of the public service, and almost 80 industries in the private sector, sometimes for their entirety sometimes for specific parts of their business (including major production and manufacturing industries, such as food and food processing, chemical, paper, pharma, steel, construction, oil and petrol trade, wood, removals, fishing and agriculture, logistics and ports, financial institutions, security services, utilities, professions libérales, etc.). It also covers all industries and businesses which are suppliers to or (sub)contractors of such vital industries.
For those ‘essential services and industries’ (and their suppliers/contractors), there is no obligation nor requirement of telework and home working. These industries and businesses are required to abide by the general and sector-specific measures which have in the meantime been set forth in many sanitary protocols. The absence of mandatory telework or home working also means that there is no duty to produce any certificate (see below).
Third, there are all other business and industries – so those which are not open to the public, and those which are not essential for the country (nor supply or (sub)contract with any of such vital businesses). For this residual category, the following rules apply:
Telework or home working is mandatory and imposed, except if telework or home working is impossible given the nature of the position involved, or impossible because of business continuity reasons.
So, telework and home working is the prevailing rule: employers are to abide by, and workers can rely on that rule (introduced by the Decree) irrespective of any individual or collective agreement which may be in effect on the terms and conditions of telework or home working. These contractual arrangements are overruled by the Decree, except (as we assume) on the financial aspects or the liability allocation of telework or homework, which continue to be governed by such arrangements.
For positions where telework or homework is impossible or in cases where the business continuity renders telework or homework impossible, there is an exception. Examples are readily available: workers at an assembly line can hardly work remote, and the core IT-team of virtually any company (the engine room of the business) needs to ensure business continuity. So, the assessment of the exception to the rule can be partly objective (which jobs cannot be performed on a remote basis?) but may also have a subjective component – who is to judge the business continuity dimension?
The latter comment is not theoretical because enforcement of the rules (which as we see is already underway!) is entrusted to the social inspectorate services. They are the first-line monitoring and sanctioning agency with the authority to impose financial sanctions in case of violation.
In this context, the Decree introduces the obligation for this residual category of employers to issue a certificate to all workers who cannot perform telework or homework and which is ‘to confirm the necessity of having the employee on site’. There is no prescribed form or format, nor content of such certificate, so it is left to business to issue this certificate indicating that business continuity (and/or the nature of the employee’s position) requires his/her physical presence on suite.
The only addressee of such certificate is the social inspectorate services, and (contrary to certain public statements) not the police nor any other law enforcement authority, since Belgium has not (yet) imposed any ‘perimeter’, any restrictions on the free movement of its citizens within the country (or even beyond).