Until recently, when considering implementing a temporary unemployment regime within a company, employers could, depending on their specific situation, apply for either:
- the temporary unemployment regime based on force majeure; or
- the temporary unemployment regime based on 'economic reasons'.
Applying for the temporary unemployment regime based on economic reasons triggers a formalistic administrative procedure. The decision as to whether an employer could enter into such a regime takes several weeks for white collar employees. This differs from the temporary unemployment regime based on force majeure, which is less formalistic.
Due to the large number of applications that the National Employment Office (RVA/Onem) has received, on 20 March 2020 the government implemented a temporary COVID-19 unemployment regime based on force majeure. If an employer is faced with temporary unemployment due to the COVID-19 pandemic, this situation is automatically considered to be force majeure.
In the meantime, the RVA/Onem has further simplified the administrative procedure. It is no longer necessary to actually apply for the temporary unemployment regime based on force majeure and await the RVA/ONEM's decision. Until 31 May 2020 (but this could be extended), employers can automatically appeal to the new temporary unemployment system. The only procedural step for employers to take is to deliver a so-called 'ASR Scenario 5' (in Dutch) or 'DRS Scénario 5' (in French) declaration (ASR/DRS Scenario 5).
Procedural steps to be taken by employers
Delivering an ASR/DRS Scenario 5
Employers must deliver an ASR/DRS Scenario 5 as soon as possible (ie, from the moment that all of the necessary information is available – employers should not wait until the end of the month to take this step).(1)
When completing the ASR/DRS Scenario 5 (where days can be entered retroactively up to and including 13 March 2020), it is important to refer to COVID-19 when adding force majeure (overmacht) under Code 5.4 'nature of the day' ('aard van de dag/nature du jour').
Each month, employers should proceed with a new ASR/DRS Scenario 5 notification.
Employers that have already sent an application for temporary unemployment for reasons of force majeure (old regime) or economic reasons or even received a decision can also switch to the new COVID-19 temporary unemployment scheme by filling in the ASR/DRS Scenario 5 as indicated above without having to make any further formalities. Employers should indicate 'force majeure' ('overmacht') (Code 5.4) with the motive 'COVID-19' as the reason for temporary unemployment in the ASR/DRS Scenario 5 and not 'economic reasons'; if not, employers will remain in the system of temporary unemployment for economic reasons.
Additional comments
Employers are exempted from the obligation to issue a C3.2A Form to employees from March 2020 to June 2020.
During the unemployment period, employees are entitled to unemployment allowances. Until 30 June 2020, the monthly gross unemployment allowance is equal to 70% of the monthly average gross salary, capped at €2,754.76. In addition, employees will receive a supplement of €5.63 per day of unemployment. These amounts are payable by the RVA/Onem and are subject to tax withholding (26.75%).
To speed-up the payment of the unemployment allowances to all affected employees, the government decided that all employees will immediately receive an advance payment of €1,450 per month. The calculation of the exact amount (as well as the tax withholding) will be regularised afterwards.
Under this temporary unemployment scheme, workers can alternate between unemployment days and working days. However, unemployment must always relate to a full working day. Therefore, a worker cannot be temporarily unemployed in the morning and work in the afternoon (or vice versa).
The 'Group of 10' (ie, the national consultative body of employers and trade unions) reached an agreement on a notification obligation for employers that want to use the temporary COVID-19 unemployment regime. On the basis of this agreement, employers must inform their employees in advance of the period to which the notification relates, as well as the planned unemployment days and the days on which employees are expected to perform work. This notification obligation is individual, which means that it must be made by the employer vis-à-vis the individual employees. A collective communication is possible, but only if it is clear to the individual employee which working regime is provided for them. This notification must be made by the day prior to the commencement date of the temporary unemployment. If employers fail to comply with the notification obligation, they cannot use the temporary COVID-19 unemployment regime. Afterwards, employers must also inform the works council (or, in the absence thereof, the Committee for Prevention and Protection at Work or the trade union delegation) about the use of the temporary unemployment. This measure has yet to be transposed into legislation by the government.
Formalities to be complied with by employees
To obtain the payment of unemployment allowances, an employee who enters into a temporary unemployment system for the first time should complete the form 'C3.2 – Employee – Corona'(2) and deliver it to the payment institution of their choice (eg, the payment institution of one of the unions or the public Unemployment Benefits Fund).
Employees who would normally not be entitled to unemployment allowances because they do not meet the eligibility conditions will exceptionally receive unemployment allowances from February 2020 to June 2020.
Endnotes
(1) This step can be made by using the following links: (in Dutch) https://www.socialsecurity.be/site_nl/employer/applics/drs/onem/scen5/about.htm and (in French) https://www.socialsecurity.be/site_fr/employer/applics/drs/onem/scen5/about.htm.
