Teleworking

In principle, teleworking should be mutually agreed in writing between both the employer and the employees. This Agreement confirms that teleworking is neither a right nor an obligation and requires a joint agreement between the parties. It can be put in place either at the time of hiring or during the performance of the employment contract.

Further to clarifying the legal framework, this Agreement introduces two forms of telework namely “occasional” and “regular”:

• occasional telework applies (i) where telework is carried out to deal with unforeseen events (e.g. in the event of a national lockdown measure following the state of emergency declared during the Covid-19 crisis, in the event of a cancelled flight/train making it impossible for employees to travel, in the event of computer problems at the workplace, etc.) and/or (ii) where telework represents less than an average of 10% of the teleworker’s normal annual working time (reference period calendar year) ;
   
• regular telework applies in all the other cases.

Common principles apply to both types of telework (e.g. voluntary basis of telework, equal treatment, non-discrimination, right to privacy, social integration, health and safety, information and training, of teleworkers etc.).

The implementation of occasional telework, however, offers more flexibility than regular telework. Notably, regular telework must be agreed in writing between the parties, hence regulating the applicable terms and conditions (e.g. place of telework, hours and days of telework during which the employee must be available, equipment provided to the teleworker, costs covered by the employers, eventual compensation replacing the loss of benefits in kind, etc.). In contrast, occasional telework does not require any particular formalism, even though a minimum written confirmation is recommended, for accident insurance reasons.

The Accident insurance association (Association d'Assurance Accident - AAA) confirmed that it will cover any accident occurring while the employee is working from home. Proof that the employee was allowed to work remotely will be requested. No coverage will however apply if the accident did not occur during work (e.g. if the employee was injured with a knife while having lunch).

The COVID-19 health crisis has precipitated the massive recourse to telework, without even requesting the employees’ prior consent, due to health and safety considerations. Employers who now wish to continue telework on a regular basis one year after the beginning of the crisis, are invited to take all necessary steps to formalise it.

Indeed, the current pandemic situation may no longer qualify as an unpredictable event, despite the appearance of new variants of the virus, so that the more flexible provisions of occasional telework should not apply. It is therefore recommended to sign addendums to the employment contracts in order to obtain the employees’ formal consent to exercise the activity in the form of telework (even if it is on a temporary basis throughout the vaccination campaign) and eventually establish an internal policy providing the applicable framework.

Attention is also drawn to the fact that the implementation of an internal teleworking policy or scheme within a company is now subject to prior information and consultation of the staff delegation. The co-decision procedure applies for companies with at least 150 employees. As a general rule, the staff delegation should be regularly informed about the number of teleworkers and any changes therein within the company.

Finally, in order to facilitate teleworking for cross-border workers during the current crisis, specific tax and social security arrangements have been negotiated with the French, Belgian and German authorities:
 

• Notwithstanding the provisions of the existing double tax treaties, as of 14 March 2020 days of presence of a worker at home, in particular to carry out telework, will not be taken into account in the calculation of the tax exempted period of 29 days for France, 24 days for Belgium and 19 days for Germany. The French, Belgian and Luxembourg authorities agreed that this understanding remains in force until 30 June 2021.  The German and Luxembourg authorities agreed that this understanding will remain applicable and tacitly renewable on a monthly basis until either party decides to withdraw its consent.
   
• Furthermore, there should be no change in status of cross-border workers in connection with the applicable social security scheme even if the threshold of performance of substantial activities (i.e. 25%) from their country of residence is met due to teleworking until 30 June 2021.