Member Article

Following the measures announced by the Federal Government on 12 March 2020, more and more employers are considering implementing a temporary telework regime, in which employees are required to work from home. Can an employer impose such a measure and what are the implications? 

• An employer cannot unilaterally oblige an employee to work from home, except if employees are exposed to specific health and safety related risks at work.
  
  

As a matter of principle, an employer is obliged to employ its employees at the agreed place of work. Hence, an employer cannot unilaterally decide to change any employee’s place of work and require such an employee to work from home. Therefore, each employee’s consent is required.

Only in exceptional circumstances can the employer unilaterally impose a telework regime as a prevention measure in the context of an employer’s obligation to employ its employees in a healthy and safe working environment (e.g. if it appears that certain employees are already contaminated with the Coronavirus). The need to unilaterally implement such a measure should be evaluated in cooperation with the prevention advisor. 

• How to formalize the telework regime? How to obtain each employee’s consent?
  
  

Entering into an individual annex to formalize the telework regime is an option but comes with an administrative burden. A more informal approach, in which an employer sends an e-mail to its employees setting out the modalities and the conditions of the exceptional telework regime, is acceptable if the employer clearly asks its employees to confirm their agreement to the exceptional telework regime.

To facilitate this process, an employer can provide in the e-mail an “I agree” button. Alternatively, an employer could ask its employees to send a short e-mail reply confirming that they agree with the modalities of the exceptional telework regime as set out by the employer.

• Some points of attention when implementing a telework regime
  
  

Below you can find some practical recommendations when implementing a telework regime:

• Clearly communicate that the telework regime is of an exceptional and temporary nature only and that the employer can withdraw the telework regime at any time once the measure no longer seems necessary.
  
  

• To the extent the company already has a home working/teleworking policy in place providing for specific features (e.g. specific cost reimbursement modalities), it is highly recommended to clearly exclude the application of the already existing home working/teleworking policy for this temporary teleworking regime. Doing so avoids employees suddenly arguing that they are entitled to certain benefits and/or advantages based on the already existing home working/teleworking policy (e.g. the cost allowance granted to employees who work from home on a regular basis), unless the employer is willing to broaden the scope of its already existing home working/teleworking policy.
  
  

• There is no legal obligation to pay the employees a telework allowance. However, some employers will accept that employees obtain a reimbursement of the professional costs incurred when working from home (e.g. if an employee has to use his/her own private mobile phone or internet connection for professional purposes). Given the temporary nature of the exceptional teleworking regime, the most straightforward approach is that employees can obtain a reimbursement of the professional costs upon submission of the corresponding justification documents. By way of an alternative, an employer could consider granting to its employees a lump-sum cost allowance to cover the telework-related costs, provided that the amount can be justified.

The above information is merely intended as comment on relevant issues of Belgian law and is not intended as legal advice. Before taking action or relying on the comments and the information given, please seek specific advice on the matters that are of concern to you.