Returning to the workplace – Part 3: Off to town for a home office? (Belgium)
26/07/2021

I will start this third part of our Working from Home series with a confession: I worked the first couple of weeks of lockdown from a small table dragged in from our balcony. Not because I don’t have a fully equipped and ergonomically approved home office, because I do. I just didn’t like the vibe in there and preferred a different view. There, that should set the tone for today’s topic.

The ergonomics of working from home have long been neglected, but as WFH becomes mandatory for longer periods, questions on the topic are on the rise: where remote working is required either by government edict or employer preference, what obligations do employers have when it comes to the design of the employee’s home office?

Collective Labour Agreement nr. 85 is not overly comprehensive on the topic. It simply states that the employer is to inform the teleworker of the company’s policy on health and safety at work, in particular the requirements for display screen equipment, and that the teleworker shall implement that policy. The CLA further provides that the company’s internal health & safety services shall have access to the teleworker’s workplace in order to check that the applicable safety and health rules are properly implemented, and that the employee may also request such a visit. It was a nice thought of course, but I’d be very surprised if in practice there have ever been any of those visits. In these days in particular, no-one wants strangers wandering round the house being sniffy about your taste in curtains.

Does this mean I have to provide desks and chairs? Not necessarily … .

An employer in Belgium has a general obligation to make available to the employee the “necessary aids, appliances and materials” required for the performance of the work. In addition, the Welfare Act states that it must ensure that the work is adapted to the individual in terms of the layout of the workstation and the choice of work equipment. Most normally this is seen in the workplace itself but these principles apply equally to employees who perform telework from home. This is regardless of the number of days a week the employee works from home, and regardless of whether the WFH was requested by employer or employee. The employer is not required to allow a request for WFH, but if the request is granted, the obligations come into play.

In addition, the Code on Well-being at Work lays down specific guidelines on the ergonomic requirements: an equipped workstation is an environment consisting of the computer equipment, accessories, ancillary equipment, a telephone, etc., plus a chair and a work table or work surface. A number of minimum requirements are set out with regard to monitors, keyboards, furniture (e.g. the seat must be adjustable in height) and environmental factors (temperature, sound, humidity in the office, etc.).

The employer should carry out a regular risk assessment (at least every 5 years) in order to evaluate the risks to which employees are exposed as a result of computer work, but this is not limited to the computer work itself but also the physical environment in which it is performed. On the basis of this risk analysis, appropriate prevention measures should be taken to prevent or remedy the risks. There are limits – the employer is not required to pay for any additional lighting or for replacement carpet worn out by office-chair castors or for any adjustments required to the employee’s home wiring to accommodate the extra power drain, nor (we did have one client whose employee asked for this, quite genuinely) for an extension to his house to create a dedicated office space. Nice try, all the same.

Applying these principles to the situation of the teleworker is not straightforward. It is advised that employers should check, on the basis of the risk analysis, whether the workstation of the employee at home meets these minimum requirements. If the employee already has the necessary equipment at his disposal, then the workstation meets the requirements of the Code on wellbeing, so there is no need for the employer to provide anything further itself. If the employee’s workstation does not meet the requirements of the Code, the employer must ensure that it does: he cannot oblige the employee to ensure this himself. It is open to the employer either to provide a standard desk of its own choosing or to give some level of discretion to the employee subject to an upper limit on cost.

The legislation on wellbeing does not however explicitly and specifically oblige the employer to purchase an additional monitor, keyboard, adjustable table and ergonomic desk chair for the teleworker’s home workstation.  Small adjustments and practical suggestions (which may be communicated in an instruction manual on how to safely work from home) may help employees to organise their home office in such a manner that it meets the requirements and passes the risk assessment. It may be wise to invest in the drafting of a manual (in cooperation with the company’s health & safety advisor and possibly the staff representatives where there is collective representation in the workplace), describing the company’s policy in this respect and giving those practical tips to make the home office a good place to. This might include tips on how to tilt a table for just the right inclination, or to lift the monitor for the right posture (using, say, old phone books). These results can be achieved without a need that for fancy adjustable desk.

But there is a tax benefit if you do

If employer and employee decide on the basis of the risk assessment that certain furniture or IT kit does need to be bought, that purchase will be tax friendly. The employer may decide either to have the employee purchase and then reimburse, or provide the materials to the employee at its own cost:

  • Providing the materials to the employee will not be considered a taxable benefit, provided that the purchase is reasonable (yes, that Eames lounge chair, leather-topped desk and solid gold Anglepoise would all do wonders for your professional creativity, but if the tax man can’t have it, neither can you). You do not have to bear any additional costs beyond the basic furniture and equipment simply in order to provide the employee with something tasteful or which matches his living room, but nothing in these rules prevents the employee from putting some of his own money into it of he wants something nicer.
  • If the employee makes the purchase, the employer can reimburse in one shot or spread over a number of months or even years. Again, the tax authority expects you to be reasonable: a chair or a table can be bought every ten years, a second screen every three years. If the employee is allowed to keep the equipment on termination of employment, that may be a taxable benefit at that time and so it is always preferable to ensure that the employee agrees in writing that it will be returned if he leaves for any reason, perhaps with the payment to him of any other sums due made expressly conditional upon his doing so. You can decide later whether you will actually be able to do anything useful with one cheap desk and chair, more-than-slightly used, one mysterious stain, self-assembly not a forte. There may be many cases where the re-sale or accounting value of old furniture and monitors is simply not worth the costs of collecting them. Selling them to the ex-employee at a notional value is often going to be easier all round.

Providing or reimbursing office equipment may be combined with the home office allowance we discussed in the second post of the series.

In the next post of the series, we will go into the slightly more delicate question of surveillance of homeworkers’ performance.

Zie ook : Squire Patton Boggs LLP ( Mrs. Marga Caproni )

[+ http://www.squirepb.com]


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