Legal best practices for implementing teleworking
Published on 19th Nov 2020
Lately many employees are forced to work from home. In this insight we look at a few legal aspects a company needs to take into account when implementing structural homeworking under Belgian law.
To read our broader introduction to the parameters of teleworking in Belgium, read our related insight here.
Written agreements around teleworking
Implementing homework is subject to the conclusion of a written individual agreement between the parties at the latest at the time when the employee begins to carry out the homeworking. This means that if the homeworking is agreed upon during the performance of an existing employment contract, an appendix to the employment contract must be drawn up. This also means that either party can at any time decide to unilaterally terminate the structural teleworking.
The written agreement must specify the following elements:
- the frequency of the homework, along with the day(s) or hours during which homework will be carried out and the days that presence in the premises is required;
- the times of day during which the employee should be reachable and via which means;
- the times during which the homeworker can call on technical support in order to assist the teleworking;
- the detailed rules according to which the employer will reimburses or pay costs;
- the detailed rules for a return to the premises and, where appropriate, the notification period and/or the duration of the homeworking and the method of extension of the homeworking.
In addition to concluding an agreement with the employee concerned, it is very common at the company level to provide a policy that regulates working from home. The purpose of such a policy is to inform employees in a general manner about certain aspects of teleworking and/or to regulate certain matters that are not explicitly regulated by the agreement concluded between the parties. Common aspects that a policy regulates are:
- the conditions of admission to work from home (which employees, possibly taking into account their seniority and position);
- to whom the homeworker should report;
- how the homeworking is terminated;
- how teleworking is organised with regard to data protection and cyber security.
Consultation with workers' representatives
As the implementation of structural telework in the company will have an impact on the organisation and working conditions of at least some employees as well have social consequences, the employer will have to inform and consult the representative bodies prior to the introduction of teleworking.
Reimbursement of costs
The employer has the obligation to provide, install and maintain the equipment required for telework. In practice, employers will often make additional tools available free of charge for the employee, and will install and maintain the equipment needed for work, such as a PC, including a screen, software enabling the employee access to the company's documents and server, a smartphone and the like. By mutual agreement, the parties may agree that the employee will use some of their own equipment, such as their own PC and/or smartphone, although this poses data protection and cyber security risks for the employer, as detailed here.
Parties must thus make clear agreements on the reimbursement of costs before telework commences. In principle, the employer is only obliged to reimburse the costs of the connections and communications related to the telework. In other words, if the parties do not make clear agreements about the reimbursement of the costs, the employer's share of the costs, other than any equipment made available, is therefore limited to the professional connection and communication costs. Even if not mandatory, the authorities accept, under certain conditions, a lump-sum reimbursement of costs amounting to EUR 129.48 free of social security contributions and taxes. The authorities also accept the grant of a lump sum of €20.00 net per month for the purchase of a PC, as well as €20.00 net per month for the Internet connection, when the employee uses his own PC and Internet connection.
Make sure to ask the right questions when considering whether or not to implement homeworking in your business. Some good questions to start with are:
• Which categories of employees will be eligible for homework?
• How many days a week can employees work from home?
• Can the eligible employees choose the days on which they work from home and if so, how many days in advance should they make a request?
• How will the company grant the homeworkers access to the company's server and files?
• How will the company secure the data the employee process outside the premises?
Employers who already have implemented homework need to assess whether they comply with the legal requirements and should assess whether they can improve any supporting documents such as a company-wide policy.
We believe that homeworking will not only increase in popularity, it will also be a tool to further digitalise your company and retain and attract talent. We are here to advise on all your legal questions about homeworking and how to make it work best for your business.