Belgium and COVID-19: obligation to register non-homeworkable functions as of 1 April 2021

Since the entry into force of the Ministerial Decree of 28 October 2020 on 2 November 2020, working from home has been again mandatory for all employers and workers (regardless whether the employer’s company is an essential business or not), unless the nature of the job or the business’ operations make working from home impossible.

By Ministerial Decree of 26 March 2021, the Belgian Government has now decided to strengthen the monitoring of compliance with these homeworking rules by obliging all employers to report certain information to the National Social Security Office (NSSO) each month, in particular the number of workers who have to be physically present at work.

What’s the current situation? 

If homeworking is not possible, employers must take all necessary measures to protect their workers against COVID-19. Specifically, employers must ensure compliance with social-distancing rules, the wearing of the masks, etc. In addition, employers must provide these workers with a certificate justifying why they must physically be at work. The social inspectorates of the Ministry of Work (FOD WASO/SPF Emploi) monitor compliance with these obligations. A criminal or administrative fine, ranging between €200 and €4,000, can be imposed in case of non-compliance, with the fine being multiplied by the number of workers for whom the infringement is established.

What’s new? 

In order to strengthen the monitoring of compliance with the obligation to work from home and the safety measures when working from home is not possible, employers will now have to communicate certain information to the NSSO.

Which information must be registered and how? 

All employers (except for companies that are completely closed) must, on a monthly basis, report the following information online through the NSSO’s e-Box platform:

• the number of workers working at the company; and
• the number of workers working at the company whose job does not allow them to work from home.

If the employer has several workplaces (vestigingseenheid/unité d'établissement), the information must be provided per workplace.

Which persons are reportable, and which are not? 

The Ministerial Decree refers to 'workers'. However, it appears from the NSSO’s guidelines that it interprets the term ‘worker’ broadly. Indeed, the following ‘persons’ are reportable:

• workers employed by the company (including workers on long-term sickness, time-credit, etc);
• agency workers, workers from other employers (e.g. subcontractors, security workers, etc.) who work on a regular basis at the company’s premises. (In order to avoid double registration, the work agency or the employer to which such a worker is attached does not have to register them since the worker will be registered by the ‘end-user’); and
• self-employed persons who are on a regular basis present at the company’s premises (e.g. consultants).

Non-homeworkable jobs are those that, given their nature, have to be done at the employer’s premises (e.g. blue-collar workers, receptionists, technical white-collar workers, etc.)

Workers who have to attend the workplace only occasionally (e.g. to print documents, to pick up material, etc.) and (line) managers do not have to be included in the list of non-homeworkable functions provided that they are able to justify their presence.

When does this information have to be registered?

The registration relates to the situation on the first working day of the month and must be submitted by the sixth calendar day of the month. Therefore, for April 2021, the registration must be submitted on 6 April 2021 at the latest.

Data protection 

This registration amounts to a processing of personal data. Although this processing activity is justified by being a legal obligation, employers should check whether their record of processing activities and existing privacy notices have to be updated to include this additional processing activity. Aspects of data minimisation and retention should also be considered.