The increased use of teleworking due to the coronavirus will not be taken into account for the determination of the applicable social security legislation.
Frontier workers having to telework due to coronavirus-related measures will remain insured in the country of their activity.
The share of the activity deployed in the home country will not be considered in the determination of the applicable legislation.
COVID-19 pandemic and applicable legislation
Summary
Context
The pandemic caused by the COVID-19 virus has a far-reaching impact on business and society. The authorities has taken extensive measures to curb the further spread of the virus. As a result, the work pattern and the workplace of a lot of salaried and self-employed workers have changed.
The European coordinating regulations n°s 883/2004 and 987/2009 on social security determine which Member State is competent in case of a cross-border work pattern. If due to the measures taken to curb the COVID-19 virus, a salaried or self-employed worker will be more or even fulltime (tele)working from home, this might according to the rules of designation of these regulations lead to the result that another Member State is competent for his or her social security.
Belgian decision
The competent Belgian ministers have decided that the periods of teleworking exercised on the Belgian territory by cross-border workers due to the coronavirus will be exceptionally not taken into account in order to determine the applicable social security legislation and these will thus have no impact on their affiliation with the social security.
Policy of the NSSO
It is not desirable that changes in the working patterns which are directly and exclusively linked to the measures to curb the COVID and which are limited to the duration of the exceptional situation, lead to a change of social security system.
Teleworking will in practice be the case in most frequent circumstances but other situations might also occur, such as secondments in which the worker seconded will be stuck much longer than planned in his temporary country of employment and entries into service under the terms of which the person concerned will be working in Belgium but will for the time being be temporary unable to go to Belgium and will thus have to work from the country where is presently residing, a.s.o.
Formalities
Due to this policy decision, the competent Member State (on the basis of the normal work pattern) will not change. This decision will be valid during the whole period of the exceptional measures from 13 March 2020 onwards until at least 5 April1 or until a different policy point of view will be adopted.
The execution of the decision does not require any single action by the employer or the worker. The A1 certificates which are already issued remain valid and it will not be necessary to inform the NSSO about the changed work pattern and neither to request for an exceptional agreement on the basis of article 16.1 of the Regulation N° 883/22004.
Beware : the changed work pattern may be only due to the virus mitigation measures and the work pattern must be "normalized" again as soon as the restrictions will be lifted. It is important that the employer’s personnel department controls accurately that (a) the instructions are correctly followed and (b) the persons concerned resume their normal work pattern once the COVID measures will be lifted. Indeed it might be well possible that in the meantime (more) teleworking will be well established and will be continued – under the radar – with all its consequences, if the worker is living in a neighbouring country.
A written agreement with the worker or at least detailed instructions by e-mail are useful and appropriate.
Bilateral agreements and Certificates of Coverage
If the cross-border employment concerns third countries outside the European Economic Area or Switzerland, the Directorate of international relations must however be informed about this and each individual file will be treated separately.
Other Member States
We currently notice (informally) that this starting point is supported by a number of other Member States such as France, Germany, the Grand-Duchy of Luxembourg and Denmark.
Mandatory Limosa declaration in case of teleworking
In the cases in which workers who are habitually employed in another Member State are authorized to do teleworking from their homes in Belgium during the period of the measures intended to contain the coronavirus, no Limosa declaration has to be established. However if a declaration has already been established but the place of employment does not correspond to the current place of telework, the declaration does not have to be adapted.
Beware : this rule is only applicable to teleworking and not to other changes of the work pattern.