Homeworking has become the new way of working in the post-COVID-19 area. After almost three months of working from home during the epidemic, the time where we were working mostly at the office seems far away today.
But a flexible working environment, such as working from home due to health and safety circumstances, has legal implications that employers and employees should be aware of.
Maybe you have asked yourself the following questions about the legal consequences of home working within your organization:
- Should you maintain your current employment contract as such or do you need an addendum to adapt to your new working environment?
- What to do if you’d like to modify or to revise your company’s home working policy or labor regulation in the future?
In this article, we will give you an overview of what you need to be cautious about in relation to home working.
Homeworking: temporary measure or structural right?
Homeworking is likely to have an impact on your current employment contract.
Why?
The Belgian government has considered the COVID-2019 epidemic as a situation of force majeure, a legal concept that refers to an exceptional situation that could not have been foreseen at the moment of the conclusion of an agreement.
Given this situation of force majeure, employers were exceptionally entitled to implement remote working for the benefit of their employees as a temporary measure during the period of confinement.
However, now that the confinement period is over, if you wish to maintain your home working arrangements, those will no longer fall under the exceptional regime or be considered as a force majeure situation.
Legally remote working will therefore be considered as a structural right, which requires an addendum to your current employment contract.
Legal framework
In Belgium, structural remote working for employees working in the private sector is governed by a collective labour agreement (CBA n°85 available in French and Dutch). Under this collective labour agreement, remote structural working requires a written agreement between employee and employer.
Permanent remote working has to be distinguished from casual or occasional remote working organized by the so-called law Peeters (available in Dutch and French).
Unlike structural remote working, occasional remote working does not require an addendum to your employment contract or a written agreement of your employer as the law describes restrictively the exceptional cases that render casual remote working possible.
However, as for the structural remote working, the collective labour agreement leaves no doubt about the fact that it has to be subject to a written agreement between employer and employee (article 6,§1 of the CBA available in French and Dutch).
What should you do?
Ask yourself the following questions before taking any action:
- Are you active in the private or public sector (as the rules are different in the public sector)?
- Are your employment contracts governed by Belgian law (as the rules are different depending on the applicable law)?
- Are you working with employees or freelancers on an independent basis (as the rules do not apply to independent)?
- Are your employees working from home only casually or most of the time?
- Do you have a clause in your employment contracts allowing remote working for your employees?
- Do you have a relevant section about home working in the labor regulation of your company?
Based on the particular situation you are in the answer may differ. Therefore, you should be careful and assess your own personnel situation correctly.
Conclusion
An appropriate clause for remote working on a permanent basis needs careful drafting in order to be legally valid.
This is equally valid for the labour regulation of your company that needs to include specific rules about home working adapted to the new “post-COVID-19” situation.
If you are uncertain about the situation you are in or you need proper legal advice to assist you, please do not hesitate to contact me.
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