In the context of the fight against the spread of the coronavirus, the Consultative Committee of Wednesday 24 March 2021 decided to strengthen the monitoring of compliance with the telework obligation.
As a reminder, it is compulsory to telework from home for all companies, associations and services for all staff members, unless this is impossible due to the nature of the function, the continuity of the management of the company, its activities or its services.
If telework from home cannot be applied, companies, associations and services are required to take appropriate preventive measures to ensure maximum compliance with the rules of social distancing, in particular the maintenance of a distance of 1.5 metres between each person.
Since 2 November 2020, employers must provide employees who cannot telework from home with a certificate or other evidence confirming the need for their presence at the workplace. This applies both to employees who have a function that is incompatible with telework and to employees who need to be present at the workplace occasionally or not.
From now on, employers are also obliged to communicate to the National Social Security Office (NSSO), each month and from April onwards, a number of data, namely:
- The number of persons employed in the undertaking on the first working day of the month, if applicable by unit of establishment
The NSSO provides more details on who must be registered.
The administration specifies that this does not only include persons bound by an employment contract, but also those who are employed under an apprenticeship contract, a statute, etc. With regard to flexi-employees, the NSSO specifies that reference should be made to the current framework contracts. Long-term sick employees, employees on time credit (career interruption) and employees with an itinerant function must also be taken into account.
Undertakings that make structural use of temporary staff (interim workers) or work structurally with staff from another employer must also take these workers into account. According to the NSSO, employees who are structurally employed on an independent basis must also be taken into account.
- The number of persons employed in the undertaking on the first working day of the month who perform a function which is incompatible with telework, if applicable by unit of establishment
By functions that are incompatible with telework, the NSSO understands all functions that, by their nature, can only be carried out on the premises, for example manual employees, technical staff, reception staff, kitchen staff, cleaning staff, administrative staff who cannot carry out their tasks from home, mobile functions such as inspectors, couriers, home care, etc.
On the other hand, functions that can be partially performed by teleworking are not covered here. The same applies to functions that can be teleworked, but which require an exceptional presence at the workplace, for example to collect equipment, print certain documents, or participate in an evaluation interview. Employees employed in these functions do not have to be registered. If necessary, they should be able to justify their presence at the workplace, for example by means of the certificate or other evidence. These employees should not be included in the number of employees in a function incompatible with telework.
In other words, if some employees are alternatively teleworking and working on the employer’s premises, they should – in our opinion – not be registered.
The Labour Inspectorate will use these data as a reference point when monitoring compliance with telework obligations.
When should the declaration be submitted?
This declaration relates to the situation on the first working day of the month and must be submitted by the sixth calendar day of the month. The NSSO specifies that the registration obligation relates to the months of April, May and June 2021. Practically speaking, it means that:
- The situation on Thursday 1 April 2021 must be reported by Tuesday 6 April 2021;
- The situation on Monday 3 May 2021 must be reported by Thursday 6 May 2021;
- The situation on Tuesday 1 June 2021 must be reported by Sunday 6 June 2021.
However, the ministerial decree introducing this registration obligation only applies until 25 April 2021. Hence, employer may, for the time being, only have to submit a declaration with regard to the situation on 1 April 2021. The ministerial decree will have to be adapted so that it can apply in May and June 2021.
How to submit the declaration?
The employer must communicate the data via the electronic registration system provided by the NSSO. This can be accessed by following this link.