A 2023 To Do List for HR Professionals

A 2023 comes with a package of new labor and employment law measures that affect HR.

2023 comes with a package of new labor and employment law measures that affect HR. The "Labor Deal" has been turned into legislation. Two EU directives on work-life balance and transparent and predictable working conditions have been implemented in Belgium. The rules on sick leave, and especially long-term sick leave, have been changed. And, with a one-year delay, we finally have our Belgian legislation on whistleblowing protection.

Here are 10 important items for you to check out as you and your company prepare your HR To Do List for 2023.

    1. Are you ready to handle employee requests to move to a four-day week?
      Since late last year, employees can ask to spread their full-time work over four rather than five days. The employer retains the right to refuse this, but must give reasons. An individual agreement must be concluded (maximum duration of six months, but renewable), and attached to the Work Rules. For companies working with a weekly working time of more than 38 hours, a collective bargaining agreement (CBA) is required.

    2. Do you wish to introduce an alternating week schedule?
      The implementation of an alternating weekly schedule meets the need for working time flexibility for, for instance, employees who have their children with them every other week (divorced parents). The employees concerned work in cycles of two weeks (or exceptionally four weeks), working more one week than the other. Application is possible only if the Work Rules allow it. An individual agreement must also be concluded with the employee (maximum duration of six months, but renewable).

    3. Your training arrangements should be in order by March 2023
      Employers with 20 or more employees must submit a draft training plan for consultation to the works council, or in the absence of this body, to the union trade delegation, or, in the absence of this body as well, to the employees. The plan must be finalized by 31 March.

      Since 1 January 2023, employees also have an individual right to four training days per year (per full-time equivalent), except in the case of a sectoral derogation. From 2024, this will become five days per year. This obligation to grant training days applies to employers with 20 employees or more. Employers who employ between 10 and 20 employees need grant only one training day per year.

    4. Is your telework policy up to date?
      Time- and location-independent work – with telework at the forefront – has become part of the post Covid-19 way of working. Is structural telework in your company/organization embedded in a policy as well as in the individual agreements with the teleworking employees? Do these documents provide an opportunity to remove the option of telework if necessary? Do you allow telework from a country other than Belgium, and, if so, are you aware of all the consequences and risks (labor, social security, and tax law, immigration, insurance, protection of (personal) data, etc.)? Have you thought about employee welfare when teleworking? The National Labor Council (NAR) is working on a new CBA that may take effect in 2023. No details are known yet, but a focus on employee wellbeing is expected.

    5. How are you going to guarantee the right to disconnect by April 2023?
      Employers with 20 or more employees must set up the rules regarding the right to disconnect, and employees and managers must be trained and made aware of this right to be offline after working hours. It is therefore time to think about the practical implications of your employees’ right not to be reachable outside working hours, and about whether you have adequate guidelines for the use of digital tools in a way that safeguards rest periods, holidays, and the private life and family life of your employees, and whether you provide training and awareness-raising regarding the prudent use of digital tools and the risks associated with excessive connection. The rules should be laid down in a company CBA or, if this is not possible, in the Work Rules. However, if a national CBA or sector CBA’s including the right to disconnect as prescribed by the law is entered into by 1 April 2023, a company CBA/Work Rules modification is not required.

    6. Are your template employment contracts and Work Rules up to date?
      Further to the transposition of the EU Directive 2019/1152 on transparent and predictable working conditions by a law of 7 October 2022, employers must inform employees about the "essential aspects of the employment relationship", e.g., the identity of the parties, the employee's position, the place of work, etc., as well as collective information such as the length of annual vacation, notice periods, and training rights. This obligation applies to new employees, and to existing employees who specifically ask for this information.

      The information may be provided in any written form. However, depending on the nature of the information (individual/collective), the employment contract and the Work Rules seem to be the most obvious vehicles. Be sure to update template employment contracts, Work Rules or any other document that contains this information to comply with the new rules.

    7. Reminder - No medical certificate required for one day of illness
      Since late last year, employees no longer have to submit a medical certificate for their first three one-day absences due to illness in any one year. Thus, employers can no longer have a default requirement for a doctor's certificate. An example:

      Employee is sick during following days/periods in 2023 Should he/she provide a medical certificate to the employer? 
      13 February  No
      13 March  No
      13 – 20 April Not for 13 April, but for the other days
      13 July Yes
      13 – 17 November Yes
      13  December Yes
      .
    8. Should you set up an internal reporting channel for whistleblowers (whistleblowing protection)? Key dates: 15 February/17 December 2023
      Legal entities with at least 50 employees are required to set up an internal whistleblower reporting channel and follow up on any reports made. The new law enters into force on 15 February 2023, but there is a transitional arrangement for the establishment of an internal whistleblowing channel for employers with 50 to 249 employees (they have until 17 December 2023). To inform employees and any other possible whistleblowers about your company’s policy on whistleblowing, a policy, in writing, should be drafted and published, both, internally and externally.

      For all your Whistleblowing questions, contact Willy, Crowell's Virtual Whistleblowing Assistant.

    9. Work-life balance: have you taken into account the recent changes?
      The transposition of Directive (EU) 2019/1158 on work-life balance is a leap forward for Belgium in terms of work-life balance. Indeed, the law of 7 October 2022 (which entered into force on 10 November 2022) provides for new measures that involve, on the one hand, the introduction of new thematic leaves and flexible work arrangements with related protection against dismissal, and on the other, increase protection against dismissal and a change in the terms of the existing special or thematic leaves.

      New caregiver leave
      From now on, employees can request to be absent from work for a maximum of five days per calendar year (consecutively or not), in order to provide personal care or help to a household or family member for a serious medical reason. An employee wishing to benefit from this right has to inform the employer beforehand and provide, as soon as possible, a certificate issued by the doctor of the household or family member concerned attesting that he/she needs the care or help due to medical reasons. Entitlement to new caregiver leave comes out of the entitlement to leave for compelling reasons (10 working days per calendar year).
      Employees making use of this right benefit from a period of protection which begins on the day of the warning to the employer and, at the latest, on the day the caregiver leave is taken, and continues until one month after the leave. During this period, the employer is not allowed to dismiss the employee except for reasons unrelated to the taking of the leave. In the event of dismissal, and at the request of the employee, the employer must communicate the reasons for the dismissal. If the employer fails to do this or the reasons are related to the taking of the caregiver leave, a lump-sum indemnity of six months' gross salary will be due.

      Flexible work arrangements
      According to the new CBA no. 162 adopted by the National Labor Council, employees with a period of employment of six months or more may request flexible work arrangements for a continuous period of 12 months, in order to provide care to a close relative. An employee wishing to arrange flexible work arrangements (telework, reduction of working time, work roster modification) must submit a written request to the employer at least two months and at most three months in advance and provide a certificate issued by the doctor of the close relative concerned attesting that he/she needs care due to medical reasons at the latest at the time of the start of the flexible work arrangements.
      Employees making use of this right benefits from a period of protection which begins on the day of the request for flexible work arrangements and continues until one month after the end of the flexible work arrangements. If the flexible work arrangements do not start, the protection lasts for one month after the requested start date. During this period, the employer is not allowed to dismiss the employee except for reasons unrelated to the request for flexible work arrangements. In the event of dismissal, and at the request of the employee, the employer must communicate the reasons for the dismissal. If the employer fails to do this, a lump-sum indemnity of six months' gross salary will be due.

      Enhanced protection against dismissal
      A new protection period has been set up concerning dismissal related to palliative care leave, and caregiver leave (provided for in article 100ter of the law of 22 January 1985 containing social provisions, parental leave or any other career leave). The protection period begins on the day of the agreement or the day of the request and continues until three months after the end of the suspension of the execution of the employment contract or the reduction of the performance of the employment contract. The law of 7 October also sets up a protection upstream: if the suspension of the execution of the employment contract or the reduction of the performance does not start, the protection continues until one month after the requested start date.
      It should also be noted that there has been an alignment with regard to lump sum indemnities, which have been increased from three months to six months in relation to dismissal relating to birth and adoption leave.
      Finally, if an employee is dismissed after the protection period, but the preparation for the dismissal took place during the protection period, the employee benefits from the protection against dismissal as well. This protection applies to all of the leaves mentioned above as well as to any flexible work arrangements.

    10. Reintegration path 2.0 and medical force majeure: three key points to keep in mind!
      Since the 1 October 2022, a new reintegration path has entered into force. Here are the main points to keep in mind:

      • The number of decisions that the prevention advisor/occupational physician can make has been reduced to 3:
        Decision A   at term, will be able to return to the agreed work. In the meantime, may return to adapted work/other work 
        Decision B  definitively unable to perform the agreed work but can perform adapted work/other work (medical justification)
        Decision C  impossible to proceed to an assessment of reintegration for medical reasons
        .
      • Tightening of your obligations!
        Be aware that your obligations as an employer have been tightened with regard to adapted work or other work. First of all, you have an obligation to inform the employee throughout the reintegration path that s/he is entitled to be assisted by an employee representative. Furthermore, you must take into account the recommendations of the prevention advisor/occupational physician, the collective reintegration policy and, if applicable, the right to reasonable accommodation for persons with disabilities. You must also provide the employee with the necessary explanations regarding the proposed reintegration path. Finally, if it is not possible within your company to provide adapted work or other work, you will have to provide a reasoned report.

      • Reintegration path 2.0 and medical force majeure: unrelated procedures
        From now on, the reintegration path for employees on long-term sick leave and dismissal for medical force majeure are considered unrelated. This legislative change entered into force on 28 November 2022.

        Dismissal due to medical force majeure can only be carried out following a special procedure in which the prevention advisor/occupational physician decides whether the employee on long-term disability is definitively unable to perform the agreed work. This procedure can be initiated either by the employer or the employee, on condition that the employee has been permanently unable to work for at least nine months.

***

We hope that you have found this checklist helpful. Obviously, not all items apply to all companies and organizations (the scope of the relevant legislation must be checked each time), nor is this a complete list for all employers. However, we hope that it will assist you in creating your 2023 HR To Do List. Our Crowell & Moring L&E team are at your disposal for more information on any of these topics and new developments.

 

Emmanuel Plasschaert, Evelien Jamaels & Gloria Saïdi

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