Temporary unemployment due to pandemic
Principle
The measures taken to contain the coronavirus had a serious impact on employment. That is why the temporary unemployment due to force majeure (coronavirus) was created. On March 20, 2020, it was decided that all situations linked to the coronavirus were considered as temporary unemployment due to force majeure. This meant that the strict procedure was no longer applicable and that no prior application to the RVA/ONEM was required. The simplified procedure could then be submitted.
The Practical Implementation of Temporary Unemployment due to Force Majeure
For whom?
The simplified declaration of temporary unemployment can be used for all employees, so both for workers and for employees. However, employees, students, full-time self-employed individuals and independent professionals are excluded.
Declaration by the Employer
The employer must submit an ASR Scenario 5 for each month in which there has been temporary unemployment. They shall indicate 'force majeure' as the reason for the temporary unemployment and mention 'coronavirus' as the reason for the force majeure. The declaration must be made for each month in which there has been temporary unemployment. No other obligations apply, nor are there any eligibility requirements. Thus, the normal obligations for temporary unemployment do not apply here.
Declaration by the Employee
The employee must submit a C3.2 form to his union or to the HVW/CAPAC (Auxiliary Unemployment Benefits Fund). For this purpose, he can use a simplified form C3.2 - Employee Coronavirus. On the basis of the declaration, he will receive a benefit amounting to 70% of his average gross salary, capped at €2,754.76/month. Per day of unemployment, he will also receive a supplement of €5.63 at the expense of the NEO. A reduced withholding tax of 15% is deducted from the benefit.
Authorised Periods
The simplified procedure for temporary unemployment due to force majeure can be applied without eligibility conditions for the periods from March 13, 2020 to August 31, 2020 and from October 1, 2020 to June 30, 2021 (for now).
In the month of September 2020, this was only possible for employees, who were employed in a company that was 'exceptionally hard hit' or active in an industry that was 'exceptionally hard hit'. A company was considered exceptionally hard hit if it could be proved that at least 20% of the total number of social security days declared, excluding temporary workers, were declared as temporary unemployment. The list of industries hit exceptionally hard was drawn up in accordance with ministerial decree.
All other companies could, if necessary, fall back on the system of reduced economic unemployment for workers or the system of traditional economic unemployment for employees. However, very different and less flexible rules applied.
Consequences for Holiday Rights
It was decided that all days of temporary unemployment would be equalized for vacation days for the period from February 1, 2020 to December 31, 2020. For the period thereafter, this has not yet been determined. The equivalence applies to all forms of temporary unemployment (thus also to quarantine and parenthood), and to all employees (thus both workers and employees and temporary workers). In concrete terms, this means that these days give rise to vacation time, but also that vacation pay is paid out for them. Since this represents a considerable cost for employers, financial compensation in the form of a support package was provided by the government. Every employer who has declared days of temporary unemployment will receive a percentage of the budget.
Consequences for the End-of-Year Premium
Whether an employee is entitled to an end-of-year bonus for the days of temporary unemployment depends on the sector of activity. In most sectors, the end-of-year bonus is calculated on the number of days actually worked, but some sectors equate the days of temporary unemployment with the days worked in full or in part. However, this is not the case for everyone. Therefore, under certain conditions, the employee will be entitled to a supplement to his end-of-year bonus. This is to partially compensate for the loss of the end-of-year bonus. The supplement is granted by the NEO.
The employee is entitled to the supplement if, in the period from March 2020 to November 2020, he was temporarily unemployed for at least 53 days due to force majeure or for economic reasons. These can be either half days or full days. However, the force majeure must be due to the effects of the corona crisis. If it was due to inability to work, the supplement does not apply.
The surcharge is €10 a day, with a minimum of €150. For half-day benefits, the premium is €5 a day, with a minimum of €75.
In concrete terms, this means the following:
- Less than 53 days unemployed, no right to the premium
- Between 53 and 67 days of unemployment, entitlement to a premium of € 50 or € 75
- More than 67 days out of work, entitled to the minimum amount of €150 or €75 plus €10 or € a day over 67 days
The employee does not have to do anything himself. The RVA/ONEM forwards the decision to the payment institution (trade union or Auxiliary Unemployment Benefits Fund) with the amount to which the worker is entitled. The first part of the premium until October may already have been paid in December 2020. The possible second part will be paid later. Probably in the months of May to June 2021.
Consequences for Fringe Benefits
During the period of temporary unemployment, the employment contract is suspended and the employer therefore does not have to pay wages. This also applies to fringe benefits. However, there are exceptions to this.
Meal vouchers and transport expenses will only be paid for days actually worked. In principle, expense allowances are also not paid out if no work is done.
For fringe benefits that are made available by the employer (such as a company car or bicycle, mobile phone/smartphone/laptop, etc.) and that are also used for private purposes, the company policy must be examined. Legally, these benefits may continue to be used, but the employer determines whether this is the case.
With regard to insurance (group insurance, hospitalisation insurance, etc.), a specific arrangement applies. Normally, there is no legal obligation to continue these insurances during the period of suspension, but for the duration of the corona crisis, it was exceptionally provided by law that the coverage continues during the temporary unemployment. However, the employer may choose to invoke an opt-out (except for death cover). In that case, the cover does not continue.
Temporary Unemployment and Illness
If an employee becomes ill during the period of temporary unemployment due to force majeure, the employer does not have to pay guaranteed wages. The employee can immediately fall back on an disability benefit paid by the health insurance fund. If the employee became unfit for work before the period of temporary unemployment began, the employer must only pay the salary up to the day before the temporary unemployment began. The employee will be entitled to a sickness benefit from the health insurance fund from the first day of temporary unemployment.
Temporary Unemployment for Temporary Workers
Temporary workers can be put on temporary unemployment, just like permanent employees, if the assignment is for a longer period and if the intention is for them to return to work for the same user. The contractual link must be maintained in this case, so the temporary workers must remain under contract during this period. However, temporary employees can only be put on temporary unemployment if the permanent employees at the user company have also been made temporarily unemployed.
No seniority conditions apply to temporary unemployment, but it may not involve an employment of very short duration (less than five days). Temporary workers who are employed on the basis of daily contracts cannot therefore claim temporary unemployment. A distinction should also be made between contracts started before March 13, 2020 and contracts started after that date. For jobs that started after March 13, 2020, it is not possible to fully suspend the contract. Thus, temporary workers cannot be placed on temporary unemployment for the entire week, they must also work. This does not apply in the case of a quarantine or mandatory closure (e.g. restaurants and bars).
Temporary unemployment must always be preceded by effective employment. In other words, It is not possible to start temporary work for a new user with temporary unemployment.
The same formalities must be fulfilled for temporary workers as for permanent employees. However, in this case it is the temp agency, i.e. the legal employer, that will submit the ASR scenario 5 declaration.
In some companies, it has been agreed at a sectoral or company level that a supplementary remuneration is paid on top of the temporary unemployment benefit. If this is the case at the user company where the temporary worker works, the temporary worker will also be entitled to the supplementary benefit.
Temporary Unemployment Due to Quarantine
If an employee has a quarantine certificate, either because he has been in contact with an infected person or because he himself has been infected (but is not showing any symptoms), he may be able to claim temporary unemployment on grounds of force majeure. Of course, this is only possible if the employee is unable to do telework. Employees who have to be quarantined after returning from a red zone are not entitled to the temporary unemployment.
The employer can also use the simplified procedure of temporary unemployment for the application. They only need to submit an ASR scenario 5. In addition, they must keep the quarantine certificate so that they can produce it in the event of a check by the NEO.
Temporary Unemployment With 'Care' Motive
Since the parental leave due to the coronavirus did not offer a solution for everyone, temporary unemployment with the motive 'care' was created. An employee can be put on temporary unemployment with this motive if:
- A minor child living under the same roof who cannot attend nursery or school. This may be due to a closure of the nursery or school, but also a result of quarantine or distance learning.
- They have a dependent disabled child, regardless of age, who cannot go to the center for care of disabled people because of coronavirus.
Temporary unemployment with a 'care' motive cannot be invoked when returning from a red zone.
Temporary unemployment with a 'care' motive is a right for the employee. It does not require the consent of the employer. However, the employee must inform the employer in writing by means of the certificate, 'closure due to coronavirus'. If it is about the care of a child who is in quarantine, the employee must fill out the document "care child quarantine corona" and deliver it to his employer together with the quarantine certificate.
The employer makes the declaration according to the simplified temporary unemployment procedure and submits an ASR scenario 5. They must keep the quarantine certificate or certificate 'closure due to coronavirus' in case of a check by the NEO.
Conclusion
Temporary unemployment due to force majeure (coronavirus) was created to minimise the impact of corona on employment, both for the employee and the employer. In the meantime, the principle has also been extended to other applications such as quarantine and care. However, the measure has some important consequences. Therefore, it is important to always be aware of all options and their correct application.
Sources and information: Federgon, Rva.be (NSSO)
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