• Legal and tax aspects of teleworking

Legal and tax aspects of teleworking

26 November 2021

Compulsory working from home during the coronary crisis has made companies think about the organisation of work in the future and how teleworking can be part of this. Companies are now opting to make structural use of teleworking. When companies choose to do this, they must take into account elements of labour law as well as social security and tax law.

Teleworking as a modality of the employment contract

When employees can carry out their work outside the company's premises on a regular and not occasional basis, using the employer's information technology, this is called 'structural teleworking'. This is a modality that can be provided for in any ordinary employment contract of a blue or white collar worker for whom the position lends itself to it, but where the employer is bound by the National Labour Council's collective bargaining agreement No. 85. For the days when telework is carried out, this CLA defines the framework and conditions. On these days, a teleworker enjoys the same working conditions as an employee working at the company's usual location and organises his own work within the framework of the working time applicable in the company. Otherwise, teleworkers are excluded from the rules on working hours, night work and Sunday rest. For the other working days, the normal rules of the law of 3 July 1978 on employment contracts apply.

A first condition is that telework can only be applied on a voluntary basis. For the avoidance of doubt, these are the conditions applicable during periods when telework is not mandated by the government. Therefore, an employer who allows telework cannot impose it on his employees, nor can employees claim a right to telework. The next step is to set out the telework in writing in the employment contract, or an appendix to it. CLA 85 prescribes what should at least be stipulated in this individual agreement. The employer must also inform his employees about the terms of employment and specifically about the additional conditions that apply to telework within the company. These matters can be included in the employment regulations or a telework policy, for example. In principle, the employer is also obliged to provide the equipment (laptop, mobile phone, etc.) that the employee needs to be able to telework. However, the employee can also use his own equipment, in which case the costs are borne by the employer.

Finally, every employer will also have to provide the necessary protection for the employee's personal data and will continue to be responsible for the health and safety of teleworkers.

Companies with worker representation must also take into account an additional obligation: before introducing telework in the company, the employer must inform and consult the worker representatives.

 

Reimbursement of costs related to telework

In principle, the employer is obliged to bear the costs of the connections and communication related to telework, as well as the costs incurred by the employee by using his own laptop and/or mobile phone.

It is possible, and practically recommended, to make use of flat-rate cost reimbursement for teleworking. Both the NSSO and the tax authorities accept the following maximum monthly lump sums as reimbursement for costs proper to the employer, exempt from NSSO contributions and taxes.

 

 

 

 

Condition NSSO

Tax condition

Agency fees

 

EUR129.48 

 

For heating, electricity, small office equipment if the employee actually performs part of his working time from home on a regular basis

For all current home office related costs for all employees who work regularly and structurally from home (i.e. the equivalent of 1 working day/week evaluated on a monthly basis). The cost cannot be reimbursed in any other way.

 

Or 10%.

Of the gross remuneration but the gross remuneration is limited to the part which relates to home delivered services

If the amount is higher than 129.48/month and the above-mentioned conditions are not met, or the employee/company manager benefits from a special regime (salary split/foreign executives status), it is advisable to apply for a tax ruling.

Internet

 

EUR 20

Exempt if employee uses own internet/PC for professional purposes on regular basis, such as 1day/week, several times a few hours/week, one week each month

Exempt if:

  1. The employee proves that their own internet/pc is actually used to work at home;
  2. The allowance has actually been used for those expenses (the tax authorities will not ask for proof if the EUR 20 is not exceeded).
  3. There is no other intervention by the employer.

 

PC or laptop (including peripherals and necessary software)

 

EUR 20

Own second computer screen, printer, scanner without own private PC

 

EUR 5 per device maximum EUR 10

 

Exempted if the employer does not contribute to these costs in any other way (e.g. by reimbursing part of the purchase price or by making the equipment available to the employee).

Exempt if:

  1. There is only professional use of a second computer screen, printer, scanner without own private PC (cannot be combined with the allowance for own PC/laptop).
  2. The employee proves that their own device is actually used to work at home.
  3. Compensation is granted for a maximum of 3 years per item.
  4. There is no other intervention by the employer.

 

 

Of course, it remains possible to reimburse the actual value of the expenses incurred upon presentation of supporting documents, rather than awarding a lump sum. Under certain conditions, the reimbursement of the purchase price of office furniture/information technology equipment necessary to carry out the professional activity at home in a normal way is accepted tax-free and exempt from social security contributions. A higher/additional reimbursement than the lump sum of EUR 129.48 per month for office expenses, for example, is therefore not excluded, provided the additional costs are proven. Please note that as from income year 2022, the total amount of the aforementioned fixed allowances and the reimbursements based on documentary evidence must be mentioned per category on the tax form 281.10 for employees (and for company directors 281.20).

If the employee uses a laptop and/or mobile phone provided by the employer, an expense allowance can no longer be granted for the use of the employee's own laptop or mobile phone. In addition, as soon as the employee is allowed to use these tools privately, a lump-sum benefit in kind ("BIK") must be taken into account:

Device:

BIK (social and fiscal estimate) per year :

GSM/Tablet/Smartphone

EUR 36/device

Fixed or mobile telephone subscription

EUR48/subscription

PC/laptop

EUR 72/device

Internet (regardless of whether it is a fixed or mobile connection and regardless of the number of devices that can use that Internet connection)

EUR 60

 

This benefit in kind is part of the salary and therefore subject to social security and personal income tax on the part of the employee and the actual costs are tax deductible on the part of the employer. In addition, the tax authorities and the NSSO accept that no benefit in kind is charged for the provision of certain goods that are necessary for exercising the professional activity. These are: desk chair, desk table, functional desk lamp, second computer screen, printer/scanner, keyboard, mouse, foot mouse, trackpad or trackball, headphones and specific equipment that persons with disabilities need to be able to work smoothly with the PC.