What are the rules regarding telework
What is telework?
The definition of telework is 'work carried out at a distance from the work or client using information and communication technology'.
Legal Framework
In Belgium, the law distinguishes between 2 forms of telework:
- Occasional teleworking
- Structural teleworking
Since last year, many employees have been working from home because of the corona virus. Although, in principle, this concerns occasional teleworking (a force majeure situation), specific rules apply. Therefore, a national collective labour agreement on corona telework was concluded. The collective agreement came into force immediately and applies to all companies that did not have a telework policy or individual telework agreements by January 1, 2021.
All forms are obviously linked to legal consequences. We will discuss all forms below.
Types of Telework
Occasional Telework
General
Occasional teleworking is often used in the context of situations of force majeure (an unforeseen strike on public transport or heavy snow), but can also be used for personal reasons (a doctor's visit that cannot take place outside working hours).
The employee must request occasional teleworking from the employer in advance and within a reasonable period. He must also state the exact reason for his request.
The employer and employee reach an agreement on how the occasional telework will be carried out. These agreements may concern the employee's accessibility, the compensation involved or the provision of equipment. It does not have to be a written agreement between the two parties, but the employer should adapt this in the work regulations or draw up a telework policy for this. The employer can refuse the employee's request, but he must, of course, give reasons for this.
Compensation for Occasional Telework
It is not compulsory to pay a contribution towards an employee's expenses. However, it is allowed. The costs that can be reimbursed in the context of occasional telework are as follows:
- A flat rate cost for IT equipment if the employee uses his private computer or his own internet connection: 20€ per month for internet connection and 20€ for private computer. These costs can be accumulated to a maximum of 40€ per month. The fixed monthly office allowance and the allowance of 10% of the gross salary do not apply here. Since 1 March 2021, the RSZ/ONSS and the tax authorities follow the same rules and flat rates and accept that these flat rate expense reimbursements are free of NSSO and withholding tax. These rules continue to apply after the corona crisis. Reimbursement of expenses
- The actual costs (e.g. for the use of a private telephone or internet), the employee has incurred, a proof of reimbursement must always be provided.
Working Time in the Case of Occasional Telework
The employee follows the normal schedule applicable within the company as if they were present within the company with the necessary flexibility. The time they are not available for personal reasons will have to be caught up.
Structural Telework
General
All rules regarding structural telework are included in collective agreement No. 85. Structural telework refers to telework at fixed and regular times, i.e. not on occasional basis. The tax authorities and the NSSO consider telework to be structural and regular if, on a monthly basis, employees work the equivalent of one working day a week from home. This can be a full day per week, or a few hours per day. A full week of telework per month is also possible.
The conditions linked to this form of telework are strict.
It must be a written agreement between employer and employee that includes the following elements:
- The frequency and possibly the days and hours when teleworking is applied or the days and hours of presence in the company.
- The times or periods when the employee must be available and by what means.
- The costs, if any, associated with the teleworking.
- The time at which the employee can call for technical assistance.
- The precise rules on returning to the company.
- The place where the employee will carry out the telework.
The employee will be informed about the various working conditions (determining the work that needs to be carried out, their department of work, clarity about their supervisor or any other individuals to whom they can turn with questions or to whom they must report).
Providing information to the employee about the policy of health and safety and the explicit will to respect it. The internal prevention services have the possibility to check the telework place. Should this involve the employee's residence, they must, of course, give their consent to this.
The working conditions of the teleworker should be the same as for employees working on the company's premises (working hours, availability of the necessary equipment or possible reimbursement of expenses when using own equipment).
Compensation for Structural Telework
Since structural telework involves teleworking at fixed and regular times, different rules apply to remuneration than to occasional telework.
There are two possibilities to reimburse the costs, namely through benefits in kind or an expense allowance.
- Benefits in Kind
This is a benefit that the employer grants to his employee, such as a laptop or a mobile phone. The employer remains the owner of these goods, but the employee may use them to perform their work.
When the employee also uses the benefits for private purposes, this becomes a benefit in kind on which social security contributions and withholding tax are deducted (professional income). If it only concerns the use for professional purposes, this is a work instrument and then no flat rate is calculated. The benefits in kind are converted into an amount that is deemed to correspond to the private use.
The flat rate by the RSZ/ONSS and FPS Finance can be found via this link Benefits in kind
These are flat rates for making a fixed or mobile PC, cell phone or tablet, internet connection and a fixed or mobile telephone subscription available.
The employee may pay their own contribution for the benefit. Of course, the flat rate must then be reduced by the personal contribution.
An employer who provides several benefits (PC, mobile phone or telephone subscription, etc.) free of charge must estimate each benefit separately and charge them cumulatively.
- Expense Allowance
The employee who incurs certain costs in order to carry out structural telework can receive an allowance for this from the employer.
Unlike benefits in kind, this remuneration is exempt from social security contributions. However, it is important that 3 cumulative conditions are met:
- The costs are incurred within the scope of employment.
- The costs are real.
- The expenses can be justified with supporting documents.
Reimbursement of expenses can be made in the following ways:
Flat-rate costs established by the NSSO, can be a fixed office allowance per month, but can also be 10% of the gross salary (gross salary is limited to the part that relates to telework). In addition, other flat-rate allowances can be granted for IT equipment as is the case for occasional telework: 20€ per month for internet connection and 20€ for private computer if the employee uses his own private computer or internet connection. All amounts can be found on the website of the RSZ/ONSS. Since 1 March 2021, the RSZ/ONSS and the tax authorities follow the same rules and flat rates and accept that these flat rate expense reimbursements are free of NSSO and withholding tax. These rules continue to apply after the corona crisis.
The actual costs (e.g. for the use of a private telephone or internet), the employee has incurred, a proof of reimbursement must always be provided. It is extremely important that these costs are not paid twice.
In addition, the RSZ/ONSS and the tax authorities now also accept that the employer covers the costs incurred by the employee for the purchase of office furniture and IT equipment (office chair, desk, desk lamp, headphones, etc.). The reimbursement is not considered as salary (and therefore no payroll tax or social security contributions are due) if the employee can prove the actual costs (via invoice) and if it can be demonstrated that the costs are necessary to be able to work under normal circumstances. The reimbursement must be reasonable (e.g. not a very luxurious office chair) and the costs cannot be reimbursed every year.
Working Time in the Case of Structural Telework
In this context, the employee can organise his work freely. The employer may, however, require moments/periods of mandatory accessibility.
Recommended or mandatory telework due to the corona virus
General
Since the outbreak of the corona virus last year, and since teleworking was strongly recommended or compulsory, workers have started working from home in mass. Although this is in principle occasional telework (a force majeure situation and not on a voluntary basis), specific rules have been drawn up for this new form of telework. In addition, a national collective agreement 149 was also concluded in connection with the recommended or compulsory telework because of the corona virus.
The collective agreement came into force immediately and applies to all companies that did not have a telework arrangement (structural or occasional) by 1 January 2021. The aim is for these companies to adapt their labour regulations or to draw up a collective agreement, individual agreement or policy with the conditions set out in the collective agreement 149. The collective does not apply to existing agreements and is valid until 31 December 2021.
In concrete terms, the collective agreement makes agreements about the provision of equipment and technical support. The times at which the worker must be available are also laid down. The collective agreement also includes a number of legal provisions on welfare, preventive measures and measures to avoid isolation.
Compensation for Recommended or mandatory telework due to the corona virus
The remuneration for telework can be laid down in the same collective agreement and can be determined at company level.
For this allowance, the RSZ/ONSS no longer makes a distinction between occasional or structural homework. However, the number of days on which the employee works at home is taken into account. If the equivalent of one working day per week is worked at home on a monthly basis, the flat-rate amounts of the NSSO can be applied. If this is not the case, the rules for the reimbursement of occasional telework apply.
Reimbursement of the costs if more than one day a week is worked at home can be done in the following ways:
Flat-rate costs established by the NSSO, can be a fixed office allowance per month. The 10% of the gross salary can only be applied if there was structural homeworking before. In addition, other flat-rate allowances can be granted for IT equipment: 20€ per month for internet connection and 20€ for private computer if the employee uses his own private computer or internet connection. All amounts can be found on the website of the RSZ/ONSS. Since 1 March 2021, the RSZ/ONSS and the tax authorities follow the same rules and flat rates and accept that these flat rate expense reimbursements are free of NSSO and withholding tax. These rules continue to apply after the corona crisis.
The actual costs (e.g. for the use of a private telephone or internet), the employee has incurred, a proof of reimbursement must always be provided. It is extremely important that these costs are not paid twice.
Here, too, the RSZ/ONSS and the tax authorities accept that the employer covers the costs incurred by the employee for the purchase of office furniture and IT equipment (office chair, desk, desk lamp, headphones, etc.). The reimbursement is not considered as salary (and therefore no payroll tax or social security contributions are due) if the employee can prove the actual costs (via invoice) and if it can be demonstrated that the costs are necessary to be able to work under normal circumstances. The reimbursement must be reasonable (e.g. not a very luxurious office chair) and the costs cannot be reimbursed every year.
Insurance Against Accidents at Work
Finally, an important point about work accident insurance. Employees who telework are working at a location other than the company. It is therefore important to report teleworking to the insurer.
Should an accident occur during teleworking, it is assumed to be a work-related accident.
The rule applies to all forms of telework.
Conclusion
In general, a distinction is made between occasional and structural telework. However, specific rules have been laid down for recommended or obligatory telework because of the corona virus. Therefore, it is important that clear agreements are made between employer and employee. Be sure to inquire with the various public authorities. In certain cases, support from the government is provided if you want to implement a telework policy in your company.
Sources and information: NSSO, SD Worx, NEO
Axis Advice is based on up-to-date data and reliable sources. However, the articles are provided for information purposes and do not constitute binding legal advice. Although Axis makes every effort to keep the content of this article correct and up-to-date, no rights can be derived from it.
