For several months, teleworking has been compulsory, except for when an employee's role or the continuity of business operations does not allow for it.
However, as many employers either have not been or have been insufficiently respecting this measure, the government has enhanced the monitoring of compulsory teleworking by introducing a new online registration obligation for employers.
From April 2021, every employer must submit a monthly declaration via the National Social Security Office's (NSSO) online portal(1) by the sixth calendar day of each month. The declaration must include data regarding:
- the total number of persons working for the company on the first day of the month; and
- the number of persons who, on the first day of the month, hold a position for which teleworking is impossible.
If a company has various operating units, it must state the numbers for each operating unit.
The social inspectorate will use this data as a basis for inspection rounds on compulsory teleworking in which employees whose functions allow for teleworking and yet who are present in the workplace must be able to justify their presence.
The penalties for violating the mandatory telework measures will be increased.
In addition to the new registration requirement, employers must still provide their employees who cannot telework with a certificate attesting that their presence in the workplace is needed.
What must employers record on the online declaration?
Each month, starting from April 2021, every employer (with the exception of undertakings that are closed on the basis of a mandatory government measure) must submit an online declaration in which the following data is provided.
Total number of persons working for the company on the first day of the month
Employers must register the total number of employees in the company's service, as well as – according to the NSSO's instructions – all temporary agency workers (so-called 'interim workers'), staff from another employer or self-employed persons whom the company works with on a structural basis.
Thus, the following types of person should be counted:
- employees working under employment contracts;
- anyone with an apprenticeship contract;
- flexi-workers with ongoing framework contracts;
- sick employees;
- employees benefiting from time credit;
- temporary agency workers if the company calls on temporary agency work on a structural basis;
- employees of subcontractors working on a structural basis in the company; and
- self-employed people working on a structural basis for the company (eg, consultants).
It is the number of persons working for the company on the first working day of the month that must be taken into account. This effectively takes a 'snapshot photo' of the company on the first working day of the month.
Number of persons who, on the first day of the month, hold a position for which teleworking is impossible
Employers must record the number of people whose work consists of a 'non-teleworkable' function (ie, a function that by its nature must be performed in the workplace).
Any person who is exceptionally present at the company premises because, for example, they have to pick up materials, print documents or hold an evaluation interview can justify this situation and should not be included in the number of non-teleworkable positions. Further, executives and persons belonging to line management (eg, forepersons and team leaders) should not be included.
Again, a 'snapshot photo' is taken on the first working day of the month.
Companies with several operating units
If a company has various operating units, it must state the numbers for each operating unit.
The company may give different persons (eg, different local managers) access to the same registration form.
Companies with more than 20 operating units may submit the requested data concerning all operating units in a structured Excel spreadsheet file.
Where must employers make the declaration?
Employers must make the declaration via the NSSO's portal site.(2)
The person who will make the declaration on behalf of the company must log in by means of their e-ID, Itsme or the other technical possibilities offered by the CSAM access system.
If the company is not in the CSAM access system, the person can register as a citizen with their e-ID or Itsme. They must declare in the registration form that they are acting as an authorised representative of the company.
When must employers submit the declaration?
The declaration must be submitted on a monthly basis, at the latest by the sixth calendar day of the month. Therefore, the first declaration had to be made no later than 6 April 2021.
What does the registration mean for possible checks by the social inspectorate?
The social inspectorate will use the registered data as a reference point in the context of inspection rounds on compulsory teleworking.
However, if there is a deviation in the number of employees at the workplace compared with the data entered in the registration tool, these deviations cannot in themselves constitute grounds for a penalty. The inspector must still check whether the employer has complied with the provisions on teleworking. However, employers with employees who can telework but who are present at the workplace must be able to justify such workers' presence.
The penalties for violating the mandatory telework measures are being increased. Non-compliance with the obligation to telework can be penalised with either an administrative fine (from €200 to €2,000) or a criminal fine (from €400 to €4,000). These fines are multiplied by the number of employees for whom an infringement is established.
Endnotes
