Covid-specific or structural telework?

After the expiration of any COVID-19-based telework obligation or recommendation and the related regime of "covid-specific telework" at the end of March 2022, telework is continued on a structural basis, and more general regular telework that is based on an agreement between the employer and employee and is separate from any legal obligation or recommendation is considered "structural telework" (national CBA n° 85).

Most telework currently performed can be considered "structural telework." This qualification entails the application of various rules and obligations, mostly the formalization of telework in an agreement.

Specific employment agreement or annex for teleworkers?

Structural telework may be (A) part of the employee's initial job description or (B) may be agreed upon between the employer and the employee throughout the course of the employment relationship. In both scenarios, an individual written agreement containing certain mandatory provisions is required. However, it is not required to conclude a separate agreement.

Hence, in scenario A, the telework provisions may be incorporated into the employee's employment agreement. Belgian employers may therefore prefer to draft a specific template employment agreement, including the required clauses for teleworkers, hence avoiding that an additional separate document has to be signed during onboarding. Indeed, the legal requirement of an "agreement on the telework" can be complied with by revising/adding only a limited number of clauses:

• The place of work clause should specify that the employee (always/mainly/partially) executes the employment agreement from home, i.e., at their home address as mentioned in the agreement. It could be considered adding that the employee must notify the employer in the case of a (temporary) change of this place (e.g., telework from a family member's house/holiday home).
• The expense reimbursement clause should specify the following:
  • Whether the employee is entitled to a lump-sum monthly telework allowance (which can be granted as social security and tax-free manner, provided that certain conditions are met and certain (inflation-adjusted) caps are complied with).
  • Attracting social security and wage tax withholdings, e.g., a company laptop and/or mobile phone, including accessories (e.g., headset).
  • Whether the employee is entitled to claim reimbursement of expenses actually incurred from the employer, e.g.,:
    • The employees use their privately owned laptops or mobile phone for work purpose.
    • The employee purchases small office supplies.
    • The employee uses their private internet connection while teleworking and incurs an additional cost as a result thereof.
• An additional ("telework - miscellaneous") clause should be added, specifying the following:
  • When the employee should be available and through which means (e.g., phone and email).
  • That the employer is responsible for the maintenance of the telework equipment.
  • When the employee can call upon technical support.
  • That the employer may conduct a health and safety inspection of the employee's home office.

If the employer has no formal presence in Belgium, it remains to be examined what the scope of the employee's functions/responsibilities is to determine whether certain additional specifications (e.g., on the employee's lack of authority to act on behalf of and/or bind the employer) can be added to mitigate the risk of the employee's home office being considered as a "permanent establishment", which would imply adverse tax implications for the employer. It is to be noted that without a permanent establishment, a non-Belgian employer will, in any event, be considered to have a Belgian establishment and will face some red tape because of the fact that an employee is teleworking on Belgian soil.

In scenario B, the (same) mandatory provisions can be included in an annex to the employment agreement (in the same concise manner or more elaborately, as preferred by the employer).

Most employers additionally implement a telework policy providing for some non-mandatory, practical/organizational provisions and/or provisions that the employer prefers not to be of a contractual nature, although having a separate policy is not a legal obligation.

Legal source: Collective bargaining agreement n° 85 of 9 November 2005 regarding telework.