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Teleworking: how to implement on a more permanent basis? (PwC Legal)

Authors: Bart Elias and Pascale Moreau (PwC Legal)

Publication date: 22/07/2020

The coronavirus has led governments all over the world to temporarily oblige teleworking whenever and wherever possible. Also in Belgium teleworking became the new normal during this global pandemic.

Today, measures to fight the coronavirus are gradually being lifted, but in the meantime both employees and employers have got to know the benefits of working from home. Moreover, several surveys show that there is an increased interest to implement teleworking for the long run. But how to do so in Belgium?

What is ‘teleworking’?

General definition of ‘teleworking’

In Belgium, teleworking is defined as:

  • a way of organising and/or executing the work,
  • with the use of information-technology,
  • as part of an employment agreement,
  • where tasks that also could be executed at the company’s premises,
  • are executed outside of the company’s premises.

Structural vs. occasional teleworking

Belgian legislation, however, created a difference between structural and occasional teleworking. There is a different legal framework for both. Therefore, it is important to know what type of teleworking you want to implement.

Structural teleworking is teleworking “on a regular basis” and “not occasionally”, while occasional teleworking is just the other way around: “not on a regular basis” and “occasionally”. 

There is no definition of what should be considered as ‘regular’ or ‘not regular’. However, an indication can be that occasional teleworking is aimed to be used for situations of force majeure (e.g. an unforeseen railway strike; really bad weather conditions for which the home working alarm was enforced) or personal reasons (e.g. a doctor’s appointment that could only be planned during working hours).

Working from home because of the government’s measures to stop the coronavirus from spreading, was considered to be occasional teleworking by the authorities, which has a less stringent legal framework. However, when teleworking would be implemented in your company on a more structural basis for the long run – by e.g. giving the employees the opportunity to work remotely for 2 days per week – the legal framework of structural teleworking will most likely become applicable.

Teleworking: at home or any other place

Teleworking does not per se have to be at the home of the employee. It can be at any other place, chosen by the employee. Therefore, teleworking provides a lot of flexibility to the employee.

However, working from one of the employer’s satellite offices is from a legal point of view not considered to be teleworking.

Implementation: a lot of formal requirements

What medium should be used to implement teleworking?

For structural teleworking, a written agreement between the employer and employee is obligatory. This can be in the employment agreement or in an addendum to the employment agreement.

For occasional teleworking no written agreement is required, but the employee must request teleworking within reasonable time beforehand (if possible). The employer either allows it or doesn’t. If the employer doesn’t allow the employee to telework, then he should give his reasons in writing (this can be in a simple email).

What should be arranged in that medium?

As already mentioned above, for structural teleworking a written agreement between the employer and employee is required. 

Several topics must be included in that agreement. It concerns the frequency of telework, when technical support is possible, when the teleworker needs to be reachable and via what resources, the reimbursement of costs due to teleworking, how to terminate telework and the place(s) where the employee chooses to telework.

For occasional telework, no written agreement between the employee and employer is required, however, the legislator did require several things to be arranged in mutual agreement: arrangements about equipment and technical support, reachability of the employee during telework and the reimbursement of costs.

Our recommendation

It’s clear (and in our opinion quite unfortunate) that the implementation of teleworking is rather formalised. For structural teleworking, the above are not even the only formalities; the employer also has several information obligations (e.g. information about data protection rules and information on the company’s health and safety policy).

Because of these extensive formalities, we recommend creating a general framework within your company (for example in a policy) for occasional and/or structural telework. With a general framework a lot of mandatory arrangements can be made for the whole company. Of course, for structural teleworking, individual written agreements between the employer and its employees will still be necessary on top of that general framework.

Reimbursement of costs

Employees working at home incur costs that would be borne by the employer if the employee would work at the company’s site. Think of costs for heating, electricity, small office supplies and internet connection, when working from home.

The employer can reimburse the employee for these costs. Moreover, for structural telework, the employer is explicitly obliged to pay for the costs related to (internet) connection and communication because of telework. Since it concerns the reimbursement of costs and not salary, this reimbursement is free of social security contributions and wage withholding taxes. 

The employer can choose to reimburse the employee on a lump sum basis (instead of requesting evidence for the actual costs), but both the social security and tax authorities have put a maximum amount on these lump sum allowances.

For the professional use of the employees private internet connection and laptop/PC, the following amounts are applicable:

  • Private internet connection: EUR 20 per month;
  • Private laptop / PC: EUR 20 per month.

For the reimbursement of office costs there are 2 options:

  • Either a fixed lump sum amount of EUR 129,48 per month;
  • Or an amount that’s equivalent to 10% of the gross salary, but the gross salary being limited to the part with respect to homeworking (Important note: this type of lump sum reimbursement is only accepted by the social security authorities, but not accepted by the tax authorities. Therefore wage withholding taxes might be due on this amount).

Please note that the above lump sum amounts can only be paid to employees teleworking on a structural basis (defined for tax purposes as at least 5 working days per month).

If the coronacrisis and the governmental obligation to work from home whenever and wherever possible has created a broad consensus to structurally  implement teleworking in your company, be aware that it does come with some formalities. We are of course happy to assist you whenever needed.

Read the original article here