Mandatory telework registration as of 6 April 2021

Already in October 2020, many obligations were introduced in the framework of the mandatory telework.

1. The following obligations were introduced in October 2020

• Mandatory telework for all companies, associations and services for all workers, unless this is impossible due to the nature of the function or the continuity of the business, activities or services;
• If teleworking is not possible, measures must be taken to ensure maximum compliance with the rules of social distancing (1.5 meters distance between each person and the compulsory wearing of a mouth mask);
• Workers who cannot telework must be provided with a certificate or any other form of evidence confirming the need for their presence at the workplace;
• The social inspection services must monitor the compliance with these measures and may impose criminal or administrative fines in the event of non-compliance.

2. An additional obligation: registration of workers with a function incompatible with telework

Recently, a new ministerial decree introduces an additional registration obligation for employers.

Employers have to register the following data on a monthly basis:

• the total number of workers in the company per branch;
• the number of workers performing a function that is incompatible with telework.

This must be done via the electronic registration system that is made available by the RSZ/ONSS on its portal. This registration only involves a two-digit statement and not the data of the workers concerned.

Companies with several branches must complete this registration for each branch individually. Companies with more than 20 branches  can submit the requested data for all these branches via the application using a structured excel file.

This registration applies to all employers, both private and public, except for those who are completely closed on a mandatory basis.

3. When should the registration take place?

The registration refers to the number of employees on the first working day of the month and must be submitted by the 6th calendar day of the month.

The first date for registration is then 6 April 2021.

4. What is meant by "worker"?

The Ministerial Decree states very clearly that it concerns the registration of "workers".

However, the RSZ/ONSS seems to interpret this notion very broadly.

This certainly does not simplify matters, as in our opinion the concept of "worker" must be interpreted strictly in this context.

What are the consequences of this?

4.1 For the purpose of registering the number of workers, the RSZ/ONSS considers the following persons to be a "worker":

• workers that the company employs (= bound by an employment contract, an apprenticeship contract, a statute,...).
  For flexi-workers, the current framework agreements are taken into account.
  Long-term sick persons and persons on time credit are also taken into account, as are workers with a mobile function (e.g. couriers, inspectors, etc.).
• temporary workers that the company uses on a structural basis;
• workers of another employer with whom the company works on a structural basis in its branch (e.g. subcontractors, seconded workers, security workers,...);
• persons who are self-employed but work on structural basis in the company (consultants, partners, ...).

This does not concern one-off presences, such as for repairs, cleaning, maintenance, etc.

Temporary employment agencies only have to declare their own workers, not the temporary workers who normally work elsewhere. They are counted with the user. The same applies to companies that supply workers to or structurally let them work in another company.

Please note! The registration is  a snapshot of the workforce on the 1st day of the months April, May and June.

If the company has several business units, the number of employees at the business unit must be indicated.

This broad interpretation by the social security authorities of what means “worker” in this context is very confusing and will definitely least to legal insecurity.

4.2 The following provisions apply to the registration of workers with a function that is not compatible with telework

Only workers who absolutely cannot or never will telework must be registered. This must be interpreted strictly.

Workers who can telework part-time or full-time should not be registered.

By functions that are not compatible with telework is meant, any function that, by its nature, has to be performed on site, for example, blue-collar workers, technical staff, reception staff, kitchen staff, cleaning staff, administrative staff who cannot perform their tasks from home, mobile functions such as inspectors, couriers, home care, etc.

People who are exceptionally present because they have, for example, to collect materials, to print out certain documents or to participate in an evaluation interview can justify this and are not included in the number of functions incompatible with telework.
The same applies to board members and persons belonging to the management (e.g. workshop managers, team leaders,...).

Here too, according to the RSZ/ONSS, the following persons must be registered:

• temporary workers whose services the company uses on a structural basis;
• workers of another employer the company works with in its branch on a structural basis (e.g. subcontractors, seconded staff, security staff,...);
• self-employed persons who are present on a structural basis;

5. How to correct a registration error?

Fortunately, it is possible to correct a registration error.

For both registrations, an amendment or correction can be made by submitting a new registration with the total number of employed persons in the company or branch office on the first working day of the month and the number of functions that are not compatible with telework.

The most recently submitted declaration replaces the previous declarations.

6. What does the social inspection check?

The last submitted registration is taken into account.

The inspection services would not question the declared numbers if they are subject of an agreement at company level with the employees (delegation).

They would use the telework registration tool mainly to look for major deviations from the number of registered non-teleworkers on a sectoral basis.

7. What do you risk if you don't comply with the telework registration?

When you do not register telework or when you do it too late, you run the  risk of being sanctioned with a criminal fine of € 400 to € 4,000 or an administrative fine of € 200 to € 2,000.

Anyone who has a teleworking position but is still present in the company will have to be able to justify his or her presence with an attestation, among other things.